VALCHAND GULABCHAND SHAH Vs. MANEKBAI HIRACHAND SHAH

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of Mr. Justice Shah in First Appeal No. 284 of 1949 which confirmed the order of the Civil Judge. Senior Division, Sholapur, in Darkhast No. 883 of 1946.

(2.) One Hirachand Gulabchand and his sort Manoranjan filed a suit against Hirachand's two brothers, Shivlal Gulabchand and Walchand Gulabchand for an account of certain property which they alleged had been entrusted to the two defendants for management. During the pendency of the suit, Hirachand, plaintiff 1, died and his widow Manekbai and his minor son Chandrashekhar were brought on record as his heirs and legal representatives and they were impleaded as plaintiffs 1A and 1B to the suit. Chandrashekhar being a minor was represented by his mother Manekbai as his next friend. During the course of the suit the parties referred their dispute to arbitration. The arbitrator made an award and a decree in terms of the award was passed on August 1, 1945. Under that decree, the defendants were asked to deliver possession of shares worth about Rs. 13,842, certain ornaments mentioned in Schedules B and C worth Rs. 13,574 and Rs. 18,550 respectively, certain silverware worth about Rs. 150 and carts and bullocks worth about Rs. 1,800 to the plaintiffs. In the alternative they were awarded a sum of Rs. 27,044. In addition to this, the defendants were asked to render accounts of the money-lending business to the plaintiffs and to pay a sum of Rs. 10,000. Manoranjan, plaintiff 2, was the step-son of Manekbai and it appeared that after the death of his father, plaintiff 1, there were disputes between Manekbai and Manoranjan. Some of these disputes took the form of proceedings in criminal Courts. Manoranjan then admittedly started Jiving with his uncle Walchand, defendant 2, and appeared to be supporting the defendants' case. The defendants having failed to satisfy the decree. Manekbai filed a Darkhast No. 833 of 1946 in the Court of the Civil Judge, Senior Division, Sholapur, to execute the decree on behalf of herself and her minor son Chandrashekhar. As the decree was a joint decree, the darkhast application came to be filed under the provisions of Order 21, Rule 15, which enables one or more of the decree- holders to apply for execution of the whole decree for ihe benefit of all decree- holders. After an order of attachment was issued by the executing Court, defendant 2, Walchand, appeared before the Court and contended (1) that the darkhast filed by Manekbai was not maintainable, inasmuch as plaintiff 2 Manoranjan had not joined in the filing of the darkhast, (2) that the ornaments mentioned in Schedules B and C had, before ihe date of the darkhast, been already handed over to Manekbai and Manoranjan, (3) that Rs. 10,000 had been paid to Manoranjan at the time of his marriage, and (4) that the decree- holders had agreed to take one land belonging to the defendants situated at Scregaon in satisfaction of the decree to the extent of Rs. 25,000.

(3.) Both the executing Court and Mr. Justice Shah have held that the darkhast was maintainable, and that the agreement to take one land belonging to the defendants situated at Soregaon in satisfaction of the decree to the extent of Rs. 25,000 had not been proved; and these points have not been disputed before us. With regard to the ornaments mentioned in Schedule C, both the executing Court and Mr. Justice Shah have come to the conclusion that they were meant exclusively for Manoranjan and that therefore the decree must be deemed to have been satisfied 'pro tanto' by the delivery of those ornaments to Manoranjan. As regards the cash payment of Rs. 10,000, which were admittedly received by Manoranjan, plaintiff 2, the executing Court held that the payment was made under an authority from Manekbai, plaintiff lA, and gave credit in respect of that payment to all the decree-holders. Mr. Justice Shah, however, took the view that the payment did not bind Chandrashekhar. minor plaintiff 1B, and he therefore allowed execution to proceed even in respect of that sum. So far as the property mentioned in Schedule B is concerned, both the executing Court and Mr. Justice Shah have held that there was no authority from Manekbai and there was no discharge of the decree in respect of that item. Mr. Justice Shah, therefore, allowed execution to proceed in respect of all the items except in respect of the ornaments mentioned in Schedule C which were, according to both the Courts, meant exclusively for Manoranjan, plaintiff 2. Against that order this appeal has been filed by defendant 2 under the Letters Patent.