NATHU PRASAD Vs. SINGHAI KAPURCHAND

JUDGEMENT

(1.) An apparent conflict between Pooranchand v- Komal-chand, AIR 1962 Madh Pra 64 (Dixit C. J. and Pandey J.), and Komalchand vs. Pooranchand, 1969 MPLJ 937 = (AIR 1970 Madh Pra 199) (Naik and Singh JJ.) has led to this reference. Three questions have been referred to us :-

(2.) The first question is of general importance and frequent occurrence on which conflicting views were taken bv the two Division Benches. The second and third questions arise because of the two particular decisions mentioned in them.

(3.) This revision has arisen in the circumstances which may be briefly narrated as follows. A money decree was passed in favour of Nathuprasad (revisionpetitioner No. 1) and Dwarkaprasad, whose legal representative is petitioner No. 2, against respondents Nos. 1, 3 and 4, and one Gulabchand, whose legal representative is respondent No. 2. In execution of that decree, a house was attached. Kapurchand (judgment-debtor) filed an objection that it was a self- acquired property. The executing Court rejected that objection, whereupon Kapurchand instituted a suit for setting aside the aforesaid order of the executing Court and for declaration that the house could not be attached or sold in execution of that decree. This was registered in the Court of Civil Judge Class I, Bilaspur, as Civil Suit No. 6-A of 1964. On October 29, 1968, which was fixed for hearing since the plaintiff did not appear, the suit was dismissed. On November 28, 1968, the plaintiff applied for restoration of the suit on the ground of his witness's illness, so that he could neither appear himself, nor instruct his counsel. This application (A) was registered as M. J. C. No. 23 of 1968.