BASANT LAL Vs. DWARKA PRASAD VARSHNEY

JUDGEMENT

(1.) THIS is a defendant' s second appeal in a suit for recovery of Rs. 3760-00, and, in order to ensure recovery, for a charge on a single storeyed house with land and chabutra pertaining thereto situated in the Court of Wards compound at Aligarh. There were two sets of defendants in the case. The three appellants were defendants of the first set. The defendant-respondents Nos. 4 to 10 were the defendants of the second set.

(2.) THE case of the plaintiff-respondents was that Hari Mohan, the ancestor of the defendants second set, had sold the aforesaid house on which charge for securing recovery of the amount claimed was sought, for the sum of Rs. 15,000/- on November 7, 1951 in favour of Smt. Bhagwati Devi, wife of Sri Murari Lal, the father of the defendants first set; that out of the sale consideration Rs. 2500/- were paid as earnest money and Rs. 8750/-were paid at the time of the registration of the sale-deed leaving a balance of Rs. 3750/- which was left by the vendor with the vendee Smt. Bhagwati Devi as unpaid purchase money; that Lala Ram Swarup, the father of the first and the third plaintiffs and husband of the second plaintiff, respondents Nos. 1, 3 and 2 respectively had two decrees in Suits Nos. 550 of 1953 and 211 of 1955 of the Court of the Munsif, Koil, District Aligarh against Sri Hari Mohan, father of the defendants Nos. 4, 6 and 7 and husband of defendant No. 5 who are defendant-respondents Nos. 4, 9, 10 and 8 respectively, the defendant-respondents Nos. 5, 6 and 7 being the sons of Man Mohan defendant respondent No. 4, that the said unpaid purchase money amounting to Rs. 3750/- in the hands of Smt. Bhagwati Devi was attached and sold as the property of Hari Mohan, the vendor, now represented by the defendants second set (defendant-respondents Nos. 4 to 10); that Lala Ram Swarup now represented by plaintiff-respondents Nos. 1 to 3 demanded payment of the said amount of Rs. 3750/- from the defendants first set now represented by the defendant-appellants and even served a notice, but the defendant-appellants did not pay any heed, hence the suit. It was also alleged that Lala Ram Swarup died as a member of a Hindu joint family and his interest was now duly represented by the plaintiff-respondents who were his survivors and entitled to recover the amount due without obtaining any succession certificate; that Smt. Bhagwati Devi had also died and the defendants first set (appellants) were her heirs in possession of the property and responsible for payment of unpaid purchase money: and that Hari Mohan, the original vendor, had also died and was now represented by the defendants second set who were his heirs and were being impleaded as defendants in order to avoid any dispute in future. THE dates of the accrual of cause of action for the suit as alleged in the plaint are November 7, 1951, the date of the sale-deed and July 26, 1955, the date of the auction sale of the liability for payment of the unpaid purchase money.

(3.) THE learned Munsif who tried the suit held that attachment and sale of the liability, of the debt due by the defendants first set, for payment of the unpaid purchase money was lawful and valid and that, therefore, the plaintiffs were the owners of the same; that the matters in dispute on the settlement of which the unpaid purchase money under the sale-deed dated November 7,1951 became payable, had been settled, and that the defendants first set were liable to pay the same; that the suit filed within limitation; that the suit was not bad for nonjoinder of the necessary parties and was not liable to be stayed on account of the pendency of Suit No. 7 of 1959 in the Court of the Civil Judge, Aligarh or the First Appeal No. 621 of 1959 pending in the High Court; that the plaintiffs were entitled to a decree even without a succession certificate and also to a charge on the aforesaid house for the recovery of the amount; and in the result he decreed the suit in favour of the plaintiffs for of recovery of Rs. 3750/- along with future interest at four per cent per annum. Further, six months ' time was allowed for payment of the decretal amount failing which the aforesaid house was declared liable to be sold for its recovery and a preliminary decree under order XXXIV, Rule 4 of the Code of Civil Procedure was ordered to be prepared accordingly.