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Juanendranath Basu Vs. Rani Nihalo Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.38
AppellantJuanendranath Basu
RespondentRani Nihalo Bibi and anr.
Excerpt:
.....code (act xiv of 1882), section 234 - legal representative--execution application not against the legal representatives--limitation--joint hindu family--widow living--nephews not legal representatives of her deceased husband. - - in the present case, even if we were to concede the two points which we set out above, we hold that the nephews are not the legal representatives of the deceased raja suchit prasad singh for the purpose of execution and that the execution proceedings taken against them as legal representatives of the deceased, for this purpose are bad. it cannot be said to have been decided that the application for execution of a decree against persons alleged to be the legal re- presentatives of the original judgment-debtor will not be a bad application for purposes of..........jnanendra nath basu, decree-holder, against rani nihalo bibi, widow of the deceased raja suchit prasad singh and his nephews raja nityanand prasad singh and kunwar satyanand prasad singh. in this particular appeal no. 594 the widow is the principal respondent but in e.s.a. no. 594 the nephews above mentioned are the principal respondent. in both the cases the other party or parties have been made pro forma respondents. the two appeals have been argued as one appeal and our judgment will stand as the judgment in both appeals. the decree was obtained by the appellant on the 5th of february 1904. at that time raja suchit prasad singh was alive and the decree was passed against him. he died, however, before any application was made to execute the decree. the first application for.....
Judgment:

1. This appeal arises out of execution proceedings taken by one Jnanendra Nath Basu, decree-holder, against Rani Nihalo Bibi, widow of the deceased Raja Suchit Prasad Singh and his nephews Raja Nityanand Prasad Singh and Kunwar Satyanand Prasad Singh. In this particular Appeal No. 594 the widow is the principal respondent but in E.S.A. No. 594 the nephews above mentioned are the principal respondent. In both the cases the other party or parties have been made pro forma respondents. The two appeals have been argued as one appeal and our judgment will stand as the judgment in both appeals. The decree was obtained by the appellant on the 5th of February 1904. At that time Raja Suchit Prasad Singh was alive and the decree was passed against him. He died, however, before any application was made to execute the decree. The first application for execution put in by the decree-holder is dated the 19th of April 1905. The nephews and the nephews only were arrayed on the record as the legal representatives of the deceased judgment-debtor, Raja Suchit Prasad Singh and the application sought to attach and bring to sale certain immovable property alleged to be the assets of the deceased Raja and in the possession of the nephews. The nephews objected and on the 8th of July 1905, the Court, before which the proceedings were, held that as the defence admitted the jointness of the family as consisting of Raja Suchit Prasad Singh and his nephews but put forward a special custom that Raja Suchit Prasad Singh was the sole ownerof the property and could not prove that custom, the nephews got the property by survivorship and the decree-holder could not proceed against it. The application out of which the present appeal arises was instituted on the 28th May 1908. It seeks to attach and bring to sale property other than property claimed in the execution proceedings of the 19th of April 1905. It is said by the decree-holder to be the self-acquired property of the deceased now in possession both of the widow and the nephews. The widow for her part objected that as against her the decree was time-barred and could not be enforced. The nephews for their part pleaded that the order of the 8th of July 1905 operated as res judicata and the application could not, therefore, be enforced against them. They also raised a plea that the application of the 28th May 1908 was barred by lapse of time. The Court, before which the applications were filed, held that the Particular property mentioned in the applications was not the self-acquired property of the deceased, The lower appellate Court considered that it was not necessary for the lower Court or for. it to decide whether the property mentioned in the application for execution was the joint family property or the self-acquired property of the deceased. As regards the nephews it held that the present application was barred by the rule of res judicata, and as to the widow it held that the application was time-barred. The decree-holder comes here in second appeal and contends that the lower Court has misunderstood the scope of Section 234 of the Code of Civil Procedure and is wrong in the view it took of the effect of the order passed on the application of the 19th April 1905, operating as res judicata. The learned Vakil for the appellant contended very earnestly ou behalf of his client that the order of the 8th of July, 1905, passed on the application of the 19th April 1905, was an order limited to the particular property. The property covered by the present application being quite separate and distinct, the Court in the previous proceedings was not called upon to consider the position of the nephews save and except in relation to the property which was then aimed at in the execution proceedings, and the order passed by the Court on that occasion must be deemed to be an order determining the position of the nephews Only in relation to the property covered by those proceedings. For this proposition he was unable to put forward any authority. For the reasons which will be given by us in this judgment, we do not consider it necessary to go into the question thus raised. Conceding for a moment that the nephews arc in possession of the property alleged to be in their possession, and even conceding further that the property is, as it is alleged to be, the self-acquired property of the deceased, we hold that the nephews are not the legal representatives of the deceased and for this we have the authority of the case of Veeranpa Chettiar v. Ramaswami Aiyar 27 M. 106. In the case cited the widow and the undivided brother of the deceased were jointly made the legal representatives of the deceased and the District Judge allowed execution to proceed against both in respect of property not only separate property but also partnership property. The learned Judges held that the widow alone was the legal representative of the deceased and execution should not proceed against the brother even if he were in possession of any portion of the assets that was separate property. They directed the name of the brother to be struck off and execution granted under Section 234 against the widow as the legal representative of the deceased. In the present case, even if we were to concede the two points which we set out above, we hold that the nephews are not the legal representatives of the deceased Raja Suchit Prasad Singh for the purpose of execution and that the execution proceedings taken against them as legal representatives of the deceased, for this purpose are bad. There remains the further question as to whether the application as against the widow is or is not barred by limitation. The learned Vakil for the appellant put forward two grounds on which he argued that the Courts below ought to have held that the application against the widow was in time. First, he pleaded in aid the execution proceedings of the 19th April 1905. He contended that although those proceedings ran in the name of the nephews only they must be held to keep the decree alive as against the widow, who was a legal representative also. In support of his contention, he referred to the case of Ramanuj Sewak Singh v. Hingu Lal 3 A. 517, and also to the Case of Gopal v. Har Prasad A.W.N (1892) 241. The case of Hari v. Narayan Sambhoji 12 B. 427 was also cited, but we hold that this case had no application whatever to the present case. In Ramanuj Sewak Singh v. Hingu Lal 3 A. 517, the application for execution was against one of the several legal representatives of the deceased judgment-debtor. As we hold that the nephews are not the legal representatives of the deceased judgment-debtor, that case is not an authority for the circumstances of the present case. In the second case of Gopal v. Har Prasad A.W.N (1892) 241, the head-note is not happily worded. Indeed we might go further and say that it is liable to mislead. The concluding part of the judgment shows that the learned Judges, who decided the case, considered that one very important question was left undecided, namely, whether Har Prasad and Kanahya Lal were the legal representatives of the deceased judgment-debtor. It cannot be said to have been decided that the application for execution of a decree against persons alleged to be the legal re- presentatives of the original judgment-debtor will not be a bad application for purposes of limitation merely because the persons named therein are subsequently found not to be the legal representatives of the judgment-debtor. The head-note goes far beyond the judgment. The second contention was that on the 16th February 1906, one. of the nephews, Raja Nityanand Prasad Singh, had made a part payment of the decree and this part payment and a letter said to be written by Nityanand Prasad Singh on the 22nd January 1906, amounted to payment and acknowledgment as are intended by Sections 19 and 20 of the Indian Limitation Act. 1877. We hold that neither the alleged payment nor the alleged letter amounts to a payment or acknowledgment intended in those sections. We dismiss the appeal in both the cases with costs including fees on the higher scale.


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