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Shyam Sunder and Others Vs. Firm NaraIn Das Bal Krishna Das and Others - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 1238 and 1331 of 1974
Judge
Reported in2001(2)AWC1180
Acts Code of Civil Procedure (CPC), 1908 - Sections 47(1), 100, 234, 240 and 251 - Order 21, Rule 90; U.P.Z.A. & L.R. Act;
AppellantShyam Sunder and Others
RespondentFirm NaraIn Das Bal Krishna Das and Others
Appellant AdvocateSankatha Rai, ;K.N. Tripathi and ;Aditya Narain, Advs.
Respondent AdvocateS.O.P. Agarwal, ;S.N. Singh and ;R.N. Singh, Advs.
Excerpt:
civil - rights of family members - sections 100 and 47 of code of civil procedure, 1908 - findings of facts and evidence considered in detail by lower courts cannot be challenged in the second appeal - objection made by third party to the suit not maintainable - members of joint hindu family cannot be said to be partners of ancestral business and their objections cannot stand-appeal dismissed. - .....by decree holder-plaintiff himself.'3. thereafter on 17.4.1958, uma shankar partner of the firm filed objections under order xxi, rule 90. c.p.c. which were rejected in default on 26.7.1958. the judgment debtor again filed objections under order xxi, rule 90, c.p.c. on 30.8.1958 which were rejected on 30.8.1958 on the ground that identical objectionshave already been rejected. thereafter, the sale was confirmed and the decree holder/purchaser obtained possession on 16.5.1959.4. objections under section 47, c.p.c. were filed by shyam sundar, raj kumar and vimal kumar. sons of' uma shanker on 2.9.1964 (misc. case no. 113 of 1964) alleging that, they were minors at the date of the sale. that there is an ancestral trading firm carrying out the joint business in the name and style of firm.....
Judgment:

B. K. Rathi, J.

1. Both these appeals are connected arising out of the common judgment and therefore they are being disposed of by this judgment.

2. The facts giving rise to these appeals are as follows :

'The Suit No. 327 of 1956 was filed by the M/s. Narain Das Bal Krishna Das against the firm Raja Ram Chhanno Lal and its partners Uma Shankar Prasad and Jagar Nath Prasad for recovery of Rs. 1.530. The suit was decreed ex-parte on 8.5.1957. The decree was transferred for execution of Munsif Havall. Varanasi where on 14.10.1957 Execution Case No. 192 of 1957 was registered. The disputed land was attached on 13.11.1957. The plots were put to auction sale on 20.3.1958 and were purchased by decree holder-plaintiff himself.'

3. Thereafter on 17.4.1958, Uma Shankar partner of the firm filed objections under Order XXI, Rule 90. C.P.C. which were rejected in default on 26.7.1958. The judgment debtor again filed objections under Order XXI, Rule 90, C.P.C. on 30.8.1958 which were rejected on 30.8.1958 on the ground that identical objectionshave already been rejected. Thereafter, the sale was confirmed and the decree holder/purchaser obtained possession on 16.5.1959.

4. Objections under Section 47, C.P.C. were filed by Shyam Sundar, Raj Kumar and Vimal Kumar. sons of' Uma Shanker on 2.9.1964 (Misc. Case No. 113 of 1964) alleging that, they were minors at the date of the sale. That there is an ancestral trading firm carrying out the joint business in the name and style of firm Raja Ram Chhanno Lal. That the property of the minors have been illegally sold during their minority and they have been dispossessed. The objections were also filed by the judgment debtors under Section 47. C.P.C. On 27.1.1965 the objections of Shyam Sunder, Raj Kumar and Vimal Kumar were converted into O.S. No. 65 of 1965. The issue No. 4 was framed in that suit and it was held that the suit is enlertainable in the revenue court and, therefore, the plaint was returned for presentation to proper court. Against that order Civil Appeal No. 288 of 1968 was filed, in which the suit was again converted into objection under Section 47, C.P.C. The objections filed by Uma Shankar and Arun Kumar, judgment debtors were registered as Misc. Case No. 108 of 1971 under Section 47, C.P.C. Both these objections under Section 47,. C.P.C. (Misc. Case No. 108 of 1971 and Misc. Case No. 113 of 1964) were dismissed by common order on 13.1.1973. Against that order two Civil Appeal Nos. 146 of 1973 and 148 of 1973 were filed. The appeals have been dismissed by a common judgment dated 7.2.1974. Against that judgments, the present second appeals have been filed.

5. I have heard Sri Sankatha Rai, learned counsel for the appellants in Second Appeal No. 1331 of 1974 and Sri Adltya Narain, learned counsel for the appellants in Second Appeal No. 1238 of 1974 and Sri R. N. Singh and Sri S. N. Singh, learned counsel for the respondents and have gone through the record.

6. In Second Appeal No. 1331 of1974, the argument advanced by the learned counsel for the appellants isthat the land in suit was sirdari land at the date of auction and, therefore, could not have been transferred by sale or otherwise as provided by U.P.Z.A. & L.R. Act. Even transfer in auction sale by the Court is void. The learned counsel is support of the argument has referred to Khatauni of 1356 fasli, in which Uma Shanker have been recorded as occupants. Khatauni No. 1367 fasli has also been filed, in which they have been recorded as sirdari in Shrenl 11. The khatauni of 1359 fasli has also been filed. It is contended that this document show that Uma Shankar and Jagar Nath were occupancy tenants of the land in dispute and were not having transferable rights and, therefore, the sale is void. As against this, it is contended by the learned counsel for the respondents that there is consistent findings of both the courts below that the land was a grove land and. therefore. Uma Shanker and others were having transferable rights. It is contended that the evidence on this point was considered in detail by both the Courts below and it is a finding of fact which cannot be challenged in the second appeal.

7. I have gone through the judgments of the court below and it appears that various documents on record were considered in detail and thereafter a finding has been recorded that the land was a grove land. The learned counsel for the appellants has only referred to the above extract of khataunis, but could not point out any illegality in the finding of the lower court that the land was a grove land which is based on the consideration of entire evidence and documents on record. It may also be added that this fact has not been disputed that grove existed over the disputed land at the spot. Therefore. I have no reason to interfere in the finding of the court below that the land in dispute was a grove land in which the tenure holder were having transferable rights. In view of the above the Appeal No. 1331 of 1974 is without merit and is fit to be dismissed. No substantial question of law, arise for decision in this appeal.

8. Now coming to the Second Appeal No. 1238 of 1974, it may be mentioned that in this case the objections were filed by Shyam Sundar. Raj Kumar and Vimal Kumar, sons of Uma Shanker. They were not parties to the suit and, therefore, their objections under Section 47,, C.P.C. were not maintainable and were wrongly entertained. Clause (1) of Section 47,. C.P.C. reads as follows :

Section 47(1) : All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.'

In view of the aboveprovision, the objections ofShyam Sunder and others, who, were not parties to the suit arenot maintainable.

9. In this connection, learned counsel for the appellants. Shyam Sunder and others has referred to the various provisions of Hindu Law. It has been contended that ancestral business was of the Joint Hindu Family. Therefore, the members of the Joint Hindu family are also partners in the business. That the suit was filed against the firm Raja Ram Chhanno Lal which was carrying ancestral business. The present appellants being members of the Joint Hindu Family were also partners in the business of the said firm and, therefore, they shall be considered to be parties in the suit and the decree as the decree is against the firm. Raja Ram Chhanno Lal. Learned counsel has referred to Sections 234, 240 and 251 and certain other provisions of Mulla's Hindu Law. On scrutiny of these provisions, it appears that where the Joint family firm is carrying on business, the members of Joint Hindu Family shall also be deemed to be partners in the business.

10. Learned counsel for the appellants have also referred to the case of Gaya Din through L.Rs and others v. Hanuman Prasad, 2001 (92)RD 79, decided by the Apex Court. It was observed in this case 'that the members of the joint family collectively own the coparcenary property. Each member has an interest in such property, though his interest becomes definite on partition. Till then. It is an undivided Interest. The view expressed in Mahabir Singh and other cases mentioned above, that the members were not the tenants of the holding because they had no interest in it, is with respect, fallacious. In law, the members of the joint Hindu Family together become the tenants of the holding. The coparcenary body as such, and as an entity apart from its members, does not own property. The property does not vest in the coparcenary but in its members, though collectively.'

11. I have considered the provisions of law referred to by the learned counsel. However, under these provisions, the members of joint Hindu family do not become entitled to file objections under Section 47,, C.P.C. Section 47,. C.P.C. is a special provision regarding objections in the execution by the parties to the suit. It cannot be extended to the persons, who are not parties to the suit on the basis that they are also members of joint Hindu family. This provision cannot be availed by them and the only option for them was to file a separate suit.

12. The objections against the execution were already filed by the other partners. Therefore, separate objections by the appellant of Second Appeal No. 1238 of 1974 were not maintainable and were wrongly entertained. They are not entitled to file separate objections under Section 47,, C.P.C. not being parties to the suit.

13. In view of the above the objections by Shyam Sunder and others were wrongly entertained. Therefore, the objections were not maintainable. Therefore, the appeals preferred by them is also liable to be dismissed.

14. Both the appeals are dismissed with costs. The stay orders, if any are hereby vacated.


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