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Deo Saran Singh Vs. Loknath Rai and anr. - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All559
AppellantDeo Saran Singh
RespondentLoknath Rai and anr.
Excerpt:
- - before the decree could be satisfied, the father died in a state of jointness with his sons. 206. i am clearly of opinion, that it does not apply to the facts of the present case in which the creditor is suing for the enforcement of the bond itself and not for enforcement of the pious obligation of the sons arising from an unsatisfied decree passed against the father, as was the case in the ruling above referred to. as already explained, it is perfectly immaterial whether the defendants are the original obligors or their legal representatives, so long as the suit is on the bond itself......attention to the language of article 66, i am unable to see any justification for limiting it to a suit brought against the executant himself and for not extending it to a suit against his sons or other legal representatives. the suit is in substance against the deceased who is represented by his sons and the decree, if passed, will be against his assets which include, by the i operation of section 53, civil p.c., joint family property in the hands of the sons. article 66, makes no reference to the person against whom the suit is brought. to attract the application of the article all that is necessary to show is that the suit is based 'on a single bond where a date is specified for payment'. whoever may be the person against whom the bond is sought to be enforced, article 66 would apply.....
Judgment:
ORDER

Niamatullah, J.

1. This is a revision under Section 25, Small Cause Courts Act, by the plaintiff, whose suit has been dismissed by the lower Court as barred by limitation. The facts, which are no longer in dispute, are that the bond in suit was executed by, Narain, the deceased father of the defendants, on 17th June 1928. The bond provides for payment before 31st May 1931. The suit was brought on 28th April 1936, that is, more than three years from, the date fixed for payment. The lower Court applied Article 66, Limitation Act, and. held that the suit was barred. It is contended by the defendants that Article 66 applies to cases in which a suit is brought against the executant of the bond himself and does not apply to a case in which it is brought against his sons for enforcement of their pious obligation to pay the debt of their father. I shall presently explain the case of this Court on which reliance is placed by learned Counsel for the applicant. Confining my attention to the language of Article 66, I am unable to see any justification for limiting it to a suit brought against the executant himself and for not extending it to a suit against his sons or other legal representatives. The suit is in substance against the deceased who is represented by his sons and the decree, if passed, will be against his assets which include, by the I operation of Section 53, Civil P.C., joint family property in the hands of the sons. Article 66, makes no reference to the person against whom the suit is brought. To attract the application of the article all that is necessary to show is that the suit is based 'on a single bond where a date is specified for payment'. Whoever may be the person against whom the bond is sought to be enforced, Article 66 would apply if the suit is based on a single bond which specified a date for payment. It is argued that 'bond' is defined in Section 2(3), Limitation Act, as including any instrument whereby a person obliges himself to pay money to another on condition that the obligation shall be void if a specified act is performed or is not performed, as the case may be, and that the definition read with Article 66 leads to the conclusion contended for in this case. I am unable to accept this contention. It is true that in this case it was the defendants' father who obliged himself to pay money to the plaintiff, but the fact remains that it is a single bond and the suit is based on it, though the relief claimed is against his assets in the hands of the defendants.

2. Narsing Misra v. Lalji Misra (1901) 23 All. 206 is said to govern the present case. In that case the creditor sued the father on a single bond of the nature contemplated by Article 66, and obtained a decree. Before the decree could be satisfied, the father died in a state of jointness with his sons. The creditor attempted to execute his decree by attaching some family property which was, however, released on the objection of the sons that the joint family property was not liable to be attached in execution of the decree obtained against the father, whose interests in such property terminated on his death. This objection prevailed. The decree-holder then instituted a fresh suit basing his cause of action on the pious obligation of the sons to pay the debt of their deceased father. It was held by a Division Bench of this Court that in the peculiar circumstances of the case Article 120, Limitation Act, was applicable. The learned Judges have taken care to point out that:

The liability of the sons depends upon the question whether there would still be an existing liability on the part of the father, were he alive. There is no doubt that if an obligation has ceased to be enforceable against the father, it has ceased to be enforceable against the sons; but in this case the plaintiff, in showing that at the date of his suit there was an obligation which he could have enforced against the father had he been alive, has not to rely only on the original bond, inasmuch as within the period of limitation allowed he had put the bond in suit and had obtained a decree upon it, which might have been enforced against the father when the plaintiff brought his suit against the sons.

3. The case was decided when the Civil Procedure Code of 1882 was in force and it was doubtful whether a decree against the father could, after his death, be executed by attachment and sale of joint family property in the hands of the sons. It was sometimes contended successfully that the father having died, the property in the hands of the sons was their own, so that it could in no sense be considered to be the assets of the deceased. The case above referred to shows that such a view was taken by the Court executing the decree passed against the father. Such a situation cannot now arise in view of the plain provisions of Sections 50 and 53, Civil P.C. of 1908, under which a decree-holder is entitled to execute his decree passed against the father by attaching the joint family property in the hands of the sons of the deceased judgment-debtor. Reverting to the case in Narsing Misra v. Lalji Misra (1901) 23 All. 206. I am clearly of opinion, that it does not apply to the facts of the present case in which the creditor is suing for the enforcement of the bond itself and not for enforcement of the pious obligation of the sons arising from an unsatisfied decree passed against the father, as was the case in the ruling above referred to. As already explained, it is perfectly immaterial whether the defendants are the original obligors or their legal representatives, so long as the suit is on the bond itself. Residuary Article 120, Limitation Act, cannot therefore apply. The result is that this application for revision is dismissed with costs.


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