KHILA DHISH Vs. MOOL CHAND

JUDGEMENT

(1.) -This appeal is brought by special leave from the judgment of the Allahabad High court dated 10/07/1954 in First Appeal No. 183 of 1952 whereby the judgment dated 2/02/1952 of the Civil Judge of Mainpuri was set aside and the case was sent back to that court for deciding on merits after taking additional evidence on behalf of the parties.

(2.) The relationship of the parties will appear from the following pedigree:there was a joint Hindu family consisting of Mool Chand and his sons on the one hand and two brothers Dharam Das and Narain Dass with his sons on the other. Dharam Das did not have any issue but Narain Dass had sons who were also members of the joint Hindu family. One of the brothers Narain Dass brought suit No. 2 of 1937 in the court of Civil Judge, Mainpuri, against Mool Chand for partition of the joint family properties. In that suit the sons of Narain Dass and Mool Chand were also impleaded as parties. During the pendency of the suit the parties agreed on 27/01/1937, that Dharam Das should be appointed as a referee to partition the family properties. By a separate agreement of the same date, Dharam Das was appointed as the manager of the entire joint family property till the decision of the dispute. Accordingly, Dharam Das entered upon the management of the joint family property and on 1/02/1938 he gave a report allotting various items of property to the members of the three branches in three lots. On 31/05/1940 a final decree was passed by the Civil Judge, Mainpuri in terms of the report. Mool Chand who was the defendant in the suit, was dissatisfied with the final decree and filed First Appeal No. 213 of 1941 in the Allahabad High court. The appeal was ultimately dismissed on 28/07/1944 on the ground that no appeal lay against the decree. On 28/07/1947 Dharam Das and Mool Chand filed two separate applications for execution of the decree in suit No. 2 of 1937. On the same date, Moolchand made an application saying that Dharam Das as manager should be required to render accounts in respect of the realisations made by him from the joint family properties on their behalf. This application Was dismissed by the Execution court on the ground that the accounting could not be demanded from the manager in execution proceedings and that Mool Ghand was at liberty to file suit for that purpose. On 27th July, 1950 Mool Ghan Ghand and his sons filed suit No. 11 of 1950 in the Court of Civil Judge, Mainpuri against Dharam Das for rendition of accounts for the period from 28/01/1937 up to June, 1941. The suit was contested by Dharam Das who pleaded that the suit was barred by Articles 89 of the Indian Limitation Act. By his judgment dated 2/02/1952 the Civil Judge of Mainpuri dismissed the suit holding that it was time barred. Against the judgment of the Civil Judge dated 2/02/1952 the respondents preferred First Appeal No. 183 of 1952 in the Allahabad High court. By his judgment dated 10/07/1964 Gyanendra Kumar,j. , allowed the appealand remanded the matter to the Civil Judge for decision according to law. It was held by Gyanendra Kumar, J. , that the suit was within time.

(3.) Article 89 of the Limitation Act, 1908 (Act No. 9 of 1908) , was to the following effect: