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Kanhaiya Lal Vs. Suraj Karan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All10; 108Ind.Cas.134
AppellantKanhaiya Lal
RespondentSuraj Karan and ors.
Excerpt:
- - being unsuccessful in his attempt to obtain a reversal of this judgment, he made an application under order 21, rule 50 (2), civil p. section 14 is not confined to defects of jurisdiction, but it also mentions 'other causes of like nature......on foot of two promissory notes, for money. the firm was styled bhairon prasad mahadeo prasad. mangli prasad was mentioned as the party on whom the summons in the suit was to be served. the case was compromised and mangli prasad agreed with kanhaiya lal to pay the decretal amount by instalments. he also earmarked a certain property, as belonging to the firm, for the purposes of raising the money. mangli prasad had, at the date of contracting the debt, and at the date of the decree, two brothers, namely suraj karan and phulchand, both of whom were minors at the time. kanhaiya lal, having got his decree, brought the property mentioned in the decree to sale. thereupon, the brothers of mangli prasad came to the court with an objection, which in our opinion was one under order 21 rule 58,.....
Judgment:

1. The admitted facts in this case are as follows: The plaintiff Kanhaiya Lal, who is the appellant in this Court, sued a certain firm, on foot of two promissory notes, for money. The firm was styled Bhairon Prasad Mahadeo Prasad. Mangli Prasad was mentioned as the party on whom the summons in the suit was to be served. The case was compromised and Mangli Prasad agreed with Kanhaiya Lal to pay the decretal amount by instalments. He also earmarked a certain property, as belonging to the firm, for the purposes of raising the money. Mangli Prasad had, at the date of contracting the debt, and at the date of the decree, two brothers, namely Suraj Karan and Phulchand, both of whom were minors at the time. Kanhaiya Lal, having got his decree, brought the property mentioned in the decree to sale. Thereupon, the brothers of Mangli Prasad came to the Court with an objection, which in our opinion was one under Order 21 Rule 58, Civil P.C. They said they had nothing to do with the simple money decree that had been passed against their brother, and that their share in the property should be exempted. The Court found (see p. 20 of the printed record) that the objectors were not bound by the decree, that their share in the property was two-thirds, and ordered the exemption of the said share from attachment. After this the decree-holder, Kanhaiya Lal, filed an application for review of judgment. Being unsuccessful in his attempt to obtain a reversal of this judgment, he made an application under Order 21, Rule 50 (2), Civil P.C. He sought a declaration to the effect that the brothers of Mangli Prasad, Suraj Karan and Phulchand, were liable, as partners of the firm Bhairon Prasad Mahadeo Prasad, to pay the decretal amount. This application was successful in the Court of first instance. The brothers of Mangli Prasad filed an appeal to this Court. The learned Judges before whom the appeal came differed in their opinions. One of them was of opinion that the order dated the 6th September 1918 stood as a bar to the maintenance of the application of Kanhaiya Lal. There was a Letters Patent appeal and this opinion of the learned Judge, already quoted, was upheld. After all this had happened the suit out of which this appeal has arisen was instituted by Kanhaiya Lal on the 16th July 1923.

2. The suit was resisted on various grounds including the ground that the defendants were not liable as partners of the firm. We may mention here that Phulchand has since died and he is now represented, on the record, by his minor son, Kapur Chand. Suraj Karan is alive. A further defence to the suit was that it was barred by limitation. The learned Subordinate Judge found on the merits of the case in favour of Kanhaiya Lal, that is to say, he found that the defendants were partners of the firm at the date of the decree, that the decree was validly passed, and that, therefore, the defendants were liable to pay the decretal amount out of their personal property. On the question of limitation, however, the learned Judge was of opinion that the suit was barred by the one year's rule of limitation. The plaintiff asked for the exclusion of the time during which he was prosecuting his application for review of judgment and his application under Order 21, Rule 50, Civil P.C. The learned Judge agreed that if the period during which the plaintiff's application, under Order 21, Rule 50, was pending could be excluded, the suit would be within time. But he was of opinion that the time could not be excluded under the provisions of S 14, Limitation Act.

3. In this Court, in appeal, it had been urged that the learned Judge was wrong in his view and that the period of the previous litigation should have been excluded.

4. On behalf of the respondents it has been urged that the remedy of the plaintiff was not by way of suit, but that it was by way of an appeal. Before we consider the question of limitation it will be necessary to see whether the suit was at all maintainable.

5. As we have already pointed out, when Kanhaiya Lal came forward with his application for attachment of the property ear-marked in the decree, for raising the money, the brothers of Mangli Prasad came forward with an objection to the effect that two-thirds of the property belonged to them. That application could have been made only under the provisions of Order 21, Rule 58, Civil P.C. Mr. Dube, the learned Counsel for the respondents, has argued that this application was really one under Order 21, Rule 50, and that the decision in the case was subject to appeal. Rule 50, Order 21, speaks of an application by the decree-holder. It does not make any mention of any application by a party who claims not to be bound by any decree and who seeks exemption of his property from being attached in execution of it. Rule 58 definitely provides for a case in which a party comes to Court with the allegation that the property attached in execution of a decree is not liable to such attachment. In our opinion there is no escape from the conclusion that Mr. Dube's client's application was an objection under Order 21, Rule 58, Civil P.C. That being so, the remedy provided to the party who lost in the contest, was provided by Rule 63 of the same order. It is true that in opposing the application of Mangli Prasad's brothers, Kanhaiya Lal did say that they were liable as partners of the firm. But the nature of the defence cannot determine the character of the claim, and it is the nature of the claim that provides the remedy. We hold that the suit is maintainable.

6. Coming to the question of limitation.: at p. 21 of the printed record the application by Kanhaiya Lal under Order 21, Rule 50 (2), Civil P.C., is printed. If we compare this application with the present plaint, we see at once that the two cases were practically identical. The plaintiff's claim then was and now is to the effect that Suraj Karan and Phulchand were members of the firm of Bhairon Prasad Mahadeo Prasad, that Mangli Prasad was the karta of the family, and that the action of Mangli Prasad was binding on his brothers. The bundle or aggregate of facts which a plaintiff must allege and prove in order to succeed constitutes his cause of action. If that be the case, the causes of action, on which the application of the 5th May 1919 (under Order 21, Rule 50) was based, and the cause of action on which the present suit is based are identical. Thus, one of the grounds for exemption of the period during which the application of the 5th May 1919 was pending has been established.

7. The next argument of Mr. Dube was that there was no defect in the jurisdiction of the Court to entertain the application of the 5th May 1919, and that therefore the period during which that application was pending could not be excluded. Section 14 is not confined to defects of jurisdiction, but it also mentions 'other causes of like nature.' We have already pointed out that this Court refused to entertain the application of the 5th May 1919 and to consider the merits of it, on the ground that the order of the 6th September 1918 operated as a bar. If that bar could be removed there could be no difficulty in the application of the 5th May 1919 being maintained. Thus the reason why the application was thrown out was a reason contemplated by Section 14, Limitation Act. The present suit is intended to remove the bar created by the order of the 6th September 1918. It was admitted in the Court below that if the period during which the application under Order 21, Rule 50, was pending could be excluded, the suit would be within time. We are of opinion that the period between the 5th May 1919 and the 21st June 1923 should be excluded.

8. As the findings of the lower Court or other points have not been controverted the result is that the appeal succeeds and it is decreed. The decree of the Court below is set aside and the suit of the plaintiff stands hereby decreed with costs throughout.


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