CHHAGANLAL HIRALAL Vs. FIRM SWAROOPCHAND HUKUMCHAND

JUDGEMENT

(1.) THIS is an appeal by the unsuccessful claimant, from the judgment and decree of dismissal, of his suit under Order 21, Rule 63, regarding property attached before judgment in a suit by the respondent No. 1 against defendants of whom the present Respondents Nos. 2 and 3 are the Legal Representatives. At this stage the question is whether the appeal has abated ual position is that the present respondents are both dead, one having died on 4-3-1959 and the other (Ramsakhibai) in May 1961; the latter herself being one of the legal representatives of Mohanlal, original defendant No. 1, who died long ago. The plaintiff in the original suit, who is respondent No. 1, also died in February 1959. The appeal is on the face of it abated, but the appellant has urged, firstly, that in a claim-suit of this nature, the defendants in the original suit are not necessary parties; it can proceed in their absence, as one between the claimants on the one hand, and the attaching plaintiff on the other. If it were a case of attachment in execution, the position regarding the judgment-debtor and the decree-holder would be the same. Secondly, in regard to the death of respondent No. 1 Sir Seth hukumchand, the argument is that there is really no abatement because the original suit was brought by "messrs. Swarupchand Hukumchand a Hindu joint family firm through Sir Seth Swarupchand Hukumchand, the Karta". For one thing, a local amendment in force at the time of the suit No. 7 of 1947 in the State of Indore, enabled the joint family firm to sue in its own name under order 30 Rule 1, C. P. C. and for another, even the claimant's suit against the joint family firm was proper under Order 30, Rule 10. Though Sir Seth Hukumchand, the Karta at that time of the joint Hindu family firm, died in February 1959, the firm as such continues to be alive and a substitution needed is only of the new karta. Case law has been cited, and the one reported in, Shop of Bhai Ganeshram balbhadra v. Firm Mangilal Balkisan, AIR 1952 Nag 390, is sought to be distinguished with reference to the facts of the instant case. There is the additional prayer that in the event of this court holding that the said ruling applied, a reference might be made to a fuller Bench for reconsideration of the principles.

(2.) THE facts are simple. In 1947, the joint Hindu family firm Messrs. Swarupchand hukumchand, as it styled itself, through their Karta (named) brought a suit against Mohanlal Gupta and Badrinarayan Gupta and attached certain properties before judgment. The present appellant put in a claim-case and on its rejection, filed a suit in October 1950, by which time the Civil Procedure Code of India had become the law in stead of the Indore, C. P. C. That suit itself being dismissed In 1955, the claimant-plaintiff filed the present appeal. As already noted, the respondents tied on different dates mentioned.

(3.) GROUND No. 1: There is good authority to the effect that in a claim-suit, the defendants or the judgment-debtors as the case may be in the original suit or execution proceedings, in which the attachment is made, are not necessary parties. If they are impleaded as proper parties, the finding binds them; but if they are not, the matter rests entirely as between the plaintiff or the decree-holder, as the case may be in the original suit or execution proceedings, and the claimant who brings the suit under Order 21 Rule 63, C. P. C. The attaching party would be describing the property as one belonging to the defendant or the judgment-debtor, and the claimant would be seeking to establish his claim against both, the decree-holder or the plaintiff, and also the judgment-debtor or the defendant as the case may be. But It may happen as it has in this case that the defendant or the judgment-debtor keeps out of the picture altogether, leaving the issue as one between the unsuccessful claimant on the one hand and the attaching party on the other. Then it is quite possible for a court to decide the issue as between the unsuccessful claimant and the attaching party. Thus in Suppan Asari v. Alima Bibi, AIR 1934 mad 587 it was held :