HEMRAJ Vs. KHEM CHAND

JUDGEMENT

(1.) THIS is an appeal by special leave from a decree of the High Court of Judicature at Allahabad dated May 12, 1938, which affirmed a decree of the Subordinate Judge of Agra dated September 12, 1936.

(2.) THE appeal arises out of an execution application made by the appellant's father, Hemraj, since deceased, for the execution of a money decree which he had obtained against one Danpal in the Court of the Subordinate Judge of Agra, afterwards confirmed on appeal against the present respondents, the sons of Danpal, by the attachment and sale of the ancestral property in their hands.

(3.) HEMRAJ and Danpal, with others, formed a joint Hindu family. In 1925, a suit was instituted, in the Court of the Subordinate Judge of Agra, by HEMRAJ on behalf of himself and another, for partition of the joint family property, against Danpal and the members of his branch of the family. Included in the suit was a promissory note for Rs. 5,264 dated November 21, 1924, executed in favour of Danpal by three brothers, Ram Chand, Sri Chand and Moonga Ram. This note had been executed in renewal of an earlier note dated December 21, 1921, for Rs. 4,680, which itself was in renewal of a promissory note dated February 22, 1919, for Rs. 4,000 which had been advanced by Danpal out of family funds. The partition suit was referred to arbitration and a decree in terms of the award was passed on June 19, 1926. Besides other items of property, the aforesaid promissory note was allotted to HEMRAJ under the award; it provided that a document or decree which was allotted to one member would be his, that the member in whose name it stood would be responsible to prove its legal necessity and that he should file it in Court within seven days of the decree. It also provided that such a document should be within time, otherwise the party in whose name the document stands shall be responsible for the amount due together with interest up to the date of arbitration award. (see Sections 2, 6 and 17 of the award). Danpal did not file the document within the specified time, but he filed instead, without giving any notice to HEMRAJ, another document executed by the three debtors on June 21, 1926. HEMRAJ filed his application for execution of the decree on January 9, 1928. Danpal then filed on February 6, 1928, the promissory note dated November 21, 1924, by which time it had become time-barred.