BHOLA NATH Vs. KASO DEVI

JUDGEMENT

(1.) This appeal arises out of execution proceedings. One Debi Das had six sons, Shyam Sunder Das, Gauri Shanker, Ram Chander, Balkrishna, Mohan Lal & Ram Kishan. Ram Kishen died leaving a widow Mt. Kaso Devi- respt. She sued her husband's brothers & obtained a decree, on 9-1-30 for future maintenance under which a charge was created upon certain family properties including a l/6th share in a partnership firm known as Krishna & Co. carrying on its business at Banaras city. Gauri Shanker's share was later on acquired by Mohan Lal, the 5th brother, & in this way Shay am Sunder Das, Ram Chander & Balkrishna were partners in the partnership firm of l/5th each out of l/6th share & Mohan Lal's share was 2/5th out of l/6th share.

(2.) In 1935 Sita Ram, one of the patnrs. of Krishna & Co., filed a suit for the dissolution of the partnership & for accounts. To this suit all the other patnrs. including Shyam Sunder Das, Gauri Shanker, Ram Chander, Balkrishna & Mohan Lal were parties. On 2-9-36 a preliminary decree was passed directing the dissolution of partnership, & the appointment of a receiver for taking accounts & realising partnership assets by sale of the partnership property. On 16-5-37 the receiver sold the assets of the partnership, including immovable properties, to one Bhola Nath for Rs. 33,200/-. On 26-8-37 Mt. Kaso Devi applied to the Civil Judge in the partnership suit praying that, out of the sale proceeds of the partnership assets & the profits payable to her judgment debtors, namely, Shyam Sunder, Ram Chander, Mohani Lal & Balkrishna (Gauri Shanker having transferred his share to Mohan Lal went out of the picture), the amount due to her for future maintenance may be paid to her & that the charge for her maintenance may be declared to be fastened to the amount in deposit in Ct to the extent of the shares of her judgment-debtors. This very reasonable appln. was, however, dismissed by the Ct. On 27-8 37 a final decree was prepare i defining the amounts payable to the various patnrs. out of the assets in the hands of the Ct.

(3.) On 8 2-38 Ram Chander, one of the judgment-debtors, under Mt Kaso Devi's decree, filed suit No. 72 of 1938 against Mohan Lal, Balkrishna, Shavm Sunder & Mt. Kaso Devi claiming the relief that the sale proceeds be-not paid to Mohan Lal, Balkrishna & Shyam Sunder till Mst. Kaso Devi's charge had been satisfied. The relief claimed in this suit was also eminently reasonable. But Mst. Kaso Devi took up the plea that Shyam Sunder, Mohan Lal & Balkrishna were willing to pay-the amount due to her, that Bam Chander alone was not willing to do so & that, therefore, he was not entitled to maintain the suit. Bam Chander, therefore, did not prosecute the suit which was dismissed for default on 31-3-38.