UNION OF INDIA Vs. LALJI BHIMJI

JUDGEMENT

(1.) One Nanubhai Harjiyan as the manager and co-sharer of a Hindu undivided family firm running in the name of Messrs Lalji Bhimji, at Amreli, filed a Regular Civil Suit No. 55 of 1947-48 in the Civil Court of the then State of Baroda, against the Governor General-in-Council of the Indian Dominion as the owner of the Bengal-Assam Railway for recovering an amount of Rs. 8500 in all on the basis of total loss of a consignment booked at Sialda Railway Station of Calcutta in favour of the plaintiff-firm to be delivered at Amreli. The summons was issued on the defendant as described in the plaint and since there was no appearance, the suit proceeded ex parte. A decree for the sum of Rs. 8500 together with running interest at 3% on Rs. 5,141 and odd and costs of the suit came to be passed against the defendant on 13-11-1938. The plaintiff-firm thereafter filed a Regular Darkhast No. 65 of 1951 in the Court of the Civil Judge (J. D.) at Amreli -- it being the successor Court of the original trial Court on the merger of the State of Baroda with the Indian Union. That was filed on 13-11-48 for recovering the amount due under the decree by calling upon the judgment-debtor to pay the amount failing which to recover the same by attachment and sale of the movable property of the judgment-debtor. In that Darkhast a notice under Order 21, Rule 22 of the Civil Procedure Code was issued against the judgment-debtor and though served no one appeared on behalf of the judgment-debtor. From the endorsement on that Darkhast it further appears that the amount was not paid though the judgment- debtor was directed to pay up the amount, Thereafter since the Court found that the property sought to be attached was not mentioned by the decree-holder in his Darkhast, the Darkhast came to be dismissed directing the costs to be paid by the judgment-debtor. That order is dated 8-1-52. Thereafter another Darkhast No. 92 of 1953 was filed by the decree-holder in the same Court against the judgment- debtor on 11-11-53 and that came to be disposed of on 29-12-54.

(2.) The same Nanubhai Harjivan has then filed Regular Darkhast No. 82 of 1955 against the judgment-debtor in the Court of the Civil Judge at Amreli for recovering the amount due under the decree by attachment and sale of the property. He has therein stated that the original joint Hindu family firm running in the name of Messrs. Lalji Bhimji of which he happened to be the manager, has been changed into a partnership firm and that he has been the manager and partner of the said firm. It is that way that he has filed the Darkhast on behalf of the partnership firm running in the name of Lalji Bhimji. So far as the judgment- debtor is concerned, it has been stated that all the rights and liabilities of the Bengal Assam Railway have now merged in the Union of India and that, therefore, a notice may be issued to the Union of India calling upon the same to pay up the amount and on its failure to do so, to recover the amount by attachment and sale of the property found at the Railway Station of Amreli including the cash amount found there. The amount claimed in the Darkhast is Rs. 10,789-6-6. It has been signed by one Kakubhai Kanji, the holder of power of attorney for one Kanji Lalji a partner in the firm of Messrs. Lalji Bhimji and also by Nanubhai Harjivandas in his personal capacity. After the Darkhast was filed on 30-4-55, an order for issuing notice to the judgment-debtor was issued. The Western Railway Administration through its advocate then appeared before the Court and filed his objections at Ex. 8 in that Darkhast. He inter alia contended that the decree under execution was in favour of M/s. Lalji Bhimji, a joint Hindu family firm and the firm executing the decree of Lalji Bhimji is a partnership firm and that way is a separate legal entity; that, therefore, the firm executing the decree cannot be said to be the decree- holder as such entitled to execute the decree; that the execution application is barred by limitation under Article 182 of the Indian Limitation Act as the previous execution applications No. 65/51 and No. 02/53 were not in accordance with law; that there was no legal entity like the General Secretary, Union of India, Western Railway Board, New Delhi and such a person is not competent to receive notice of execution according to law; that the decree being against a railway administration of Union of India owning a particular railway administration, a notice should be served on the General Manager of the said Railway Administration and as there is no such proper service, the execution application is liable to be dismissed, that the decree under execution has been obtained by fraud on the Court and that it was void and was not executable; that the decree under execution is without jurisdiction as it was passed without service of the summons on the defendant and in the result, the execution application should be dismissed with costs. The trial Court rejected all the contentions raised on behalf of the Western Railway and directed the Darkhast to proceed further.

(3.) Feeling dissatisfied with that order passed on 7-8-59 by Mr. I.C. Sheth, Civil Judge (S. D.) Amreli -- the opponent filed Civil Appeal No. 35 of 1959 in the Court of the District Judge at Amreli. Along with the appeal, an application Ex. 4 was presented to the Court for staying the execution proceedings taken out against the judgment-debtor. An interim stay was issued and it was to remain in effect till 1512- 59 during which time the appellant was required to deposit the decretal amount with costs and interest up-to-date in the District Court at Amreli. Instead of depositing amount in Court, the appellant through mistake of the pay-clerk sent a cheque to the respondent for the sum of Rs. 10918-91nP. with a covering letter on 8-12-59. One Balubhai Kanji, one of the partners of the firm, has made an affidavit Ex. 18 stating that a cheque was received in satisfaction of the decretal dues and the payment has been appropriated towards the same and the receipt was sent to the railway administration. That payment is said to have been received in the month of December 1959. Sometime after i.e. on 22-8-1960, the learned advocate appearing for the appellant, gave an application Ex. 15 stating inter alia that the cheque for the decretal amount was sent to the opposite side through the mistake of a clerk of the railway administration instead of depositing the amount in Court and that the respondent should be called upon to have the amount deposited in Court under Section 144 or under Section 151 of the Civil Procedure Code.