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Seth Bithal Das Vs. Jiwan Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All190; 66Ind.Cas.744
AppellantSeth Bithal Das
RespondentJiwan Ram and ors.
Excerpt:
execution - deposit of decretal amount--application for refund by sons of decree-holder--notice to decree-holder--ex parte order--payment to sons--decree, holder's application for refund--procedure. - .....that he was not aware of the date when the applications of his sons would some on for bearing. the sons' applications were heard, bithal das being absent and unrepresented. the court found that the notice whish had been issued to him was refused by him, and decided the applications ex parte against him. the order was that 1-6th of the amount in question should be paid to jiwan ram and 1-6th to jaganrath. disbursement was made accordingly. then bithal das came into court with an application that his sons should be made to refund the money on the ground that he had received no notice and that they were not entitled to the money. the learned subordinate judge took security from them for re-payment of the amount whish they had received, and directed bithal das to institute a suit within.....
Judgment:

1. The applicant, Seth Bithal Das, has two sons, Jiwan Ram and Jagannath. We have it that a mortgage-deed was executed in favour of Bithal Das and his three brothers and that in a subsequent partition the rights under the mortgage-decree were assigned to Bithal Das and a brother sailed Kanhaiya Lal; that subsequently a suit was brought upon the mortgage-deed and a decree obtained, half the benefits of whish acarned to Kanhaiya Lal's heirs and half to Bithal Das. Subsequently, a sum was paid into Court in satisfaction of the whole decree. Half of that sum has been taken away by the heirs of Kanhaiya Lal, and we are in no way sonaerned with that. With regard to the remaining half, the present dispute has arisen. Jiwan Ram same into Court requesting that 1-6th of the decretal amount in the hands of the Court should be paid to him, Jagannath same later and requested that 1-6th should be paid to him. Their father, Bithal Das, stales that be sent many telegrams of protest, but that he was not aware of the date when the applications of his sons would some on for bearing. The sons' applications were heard, Bithal Das being absent and unrepresented. The Court found that the notice whish had been issued to him was refused by him, and decided the applications ex parte against him. The order was that 1-6th of the amount in question should be paid to Jiwan Ram and 1-6th to Jaganrath. Disbursement was made accordingly. Then Bithal Das came into Court with an application that his sons should be made to refund the money on the ground that he had received no notice and that they were not entitled to the money. The learned Subordinate Judge took security from them for re-payment of the amount whish they had received, and directed Bithal Das to institute a suit within three months to have his title to the amount declared. If he did not institute this suit, the security filed by the sons was to be declared cancelled. This is the matter whish has some before us in revision. We agree that the learned Subordinate Judge had no authority to pass these orders. He had no authority to direst Bithal Das to file a suit and he had no authority to take security for the return of the money. The application of Bithal Das was somewhat unfortunately worded but the application should have been dismissed, unless the ex parte order against Bithal Das was set aside. The application should be read as an application to set aside the ex parte order. Now this is how the case stands. If Bithal Das really refused notice, we see no reason why the previous orders directing disbursement to Jiwan Ram and Jagannath should be interfered with. Bat if Bithal Das did not receive notice, these orders would be automatically set aside, and the Court as a Court of execution would determine the matter upon its merits, and would either pay the money jointly or separately as this merits of the case required. For the above reasons, we set aside the order demanding security and the order directing Bithal Das to file a suit, and we send the case back to the learned Subordinate Judge or his successor to hear the case out as an application to set aside the ex parte order against Bithal Das, and after determining that matter, to pass on to such other action as his decision may render necessary. In the sircumstances of the case we direst the parties to bear their own costs.


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