JAGANNATH PRASAD Vs. RAM DULAREY

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for the recovery of a sum of Rs. 10,000/- from the defendants respondents. The facts, briefly stated, are as follows:

(2.) One Baijnath, brother of Sheo Prasad, Plaintiff appellant 2, and father of plaintiff appellant 1 and one Janki Prasad, husband of Smt. Ram Dulari defendant respondent 3, were close relations. Baijnath, according to the plaintiffs appellants, was a member of a joint Hindu family along with the other plaintiffs and used to 'deposit' at different times, various sums of money with Janki Prasad. Janki Prasad used to carry on money-lending business on an extensive scale. He used to advance money to various debtors and on one occasion on 30-7-1920 he obtained a mortgage deed from two persons, Mohammad Askari and Agha Ali for a sum of Rs. 9000/-. The amount was not paid by the mortgagors and both Janki Prasad and Baijnath filed a suit on the basis of the mortgage and obtained a decree and the mortgaged property was sold and a sum of Rs. 14,850/- was deposited in court on 4-6-1921. There was a dispute between Baijnath and Janki Prasad about the ownership of the mortgage money, and Baijnath filed a suit for a declaration to the effect that he alone owned the mortgage money and that therefore the decree passed in the suit was executable by him alone and not by Janki Prasad whose name was entered in the mortgage deed and in the suit as a benamidar. Some other property was also in dispute in this case & a declaration with regard to that property was also sought. We are, however not concerned with that property. As regards the mortgage decree mentioned above, it was held that Baijnath should have claimed his relief by means of an objection under Section 47, C. P. C. and that he could not seek his remedy by means of a separate suit. Thereupon Baijnath filed am, objection under Section 47, C. P. C. in the execution Court. This objection was dismissed as the Court held that Janki Prasad was the real owner of the sum advanced to the mortgagors and he alone was entitled to execute the decree. Baijnath preferred an appeal which was heard by the late Chief Court and the decision of the Court below was affirmed. In its judgment the Chief Court expressed the opinion that Baijnath had deposited with Janki Prasad a sum of about Rs. 10,000/- part of which was used by Janki Prasad in the payment made to Mohammad Askari and Agha Ali as consideration for the mortgage. This decision was given on 19-8-1943. 'Baijnath applied for review of the judgment but the application was dismissed OIL 20-2-1944. Thereupon the plaintiffs filed the present suit On, 17-8-1946, for the recovery of a sum of Rs. 10,000/- on the allegation that this amount had been "deposited" by Baijnath with Janki Prasad and that the plaintiffs who were the survivors of the joint Hindu family consisting of themselves and Baijnath deceased, were entitled to recover it from the defendants. Janki Prasad had died before the institution of the suit and his widow Smt. Ram Dulari was impleaded as defendant 1. The other defendants to the suit were some of the trustees who were appointed by Janki Prasad under a deed of trust executed by him before his death. Two of these defendants respondents, namely, Ganesh and Dhani Ram died during the pendency of the appeal in this Court. No one was substituted in their place but as the other trustees could carry on the duties of the trust even in the absence of Ganesh and Dhani Ram, the appeal was allowed to proceed.

(3.) Although in the plaint the plaintiffs mentioned that the sum of Rs. 10,000/- was paid to Janki Prasad by way of "deposit" they did not say that they had made any demand in respect of it. They simply stated that there was no period of limitation prescribed for the return of the de-posite money & that if any article of the Limitation Act applied to the case, the period of limitation would run from 20-3-1944, the date of the dismissal of the application for the review of judgment by the Chief Court.