MADAN SAHU AND ORS. Vs. SUNAKAR NAIK

JUDGEMENT

(1.) THIS is an appeal against the concurrent decisions of the two lower Courts dismissing an objection under Section 47 Code of Civil Procedure by the judgment -debtors against the execution of a money decree dated 22 -6 -45 obtained against them.

(2.) ONE Hadu Sahu, his brother Nila Sahu and their nephew (brother's son) Gopi Sahu were originally members of a Hindu joint family with Hadu as the Karta of the family. Hadu executed a hand -note as Karta of the family and on the basis of that the decree -holder (Respondent) obtained an exparte money decree on 22 -6 -45 against Hadu, Nila and Gopi. The decree -holder started the first execution proceeding sometime in 1946 but it was dismissed as infructuous on 17 -12 -46. The present execution under challenge was filed by him on 10 -5 -52, more than three years after the dismiss of the previous execution petition. Limitation was sought to be saved by an alleged part payment of Rs. 50/ - towards the decretal dues said to have been made by Hadu as Karta of the family on 19 -6 -49 and an acknowledgment of such payment (Ext. 1) on the copy of the decree. Hadu is now dead and is represented by his two sons, Madan and Mani.

(3.) THE main legal objection is, however, that when the decree -holder obtained a decree against all the co -parceners of the joint family, payment made by a managing member alone would not save limitation and that Section 21(3)(b) of the Indian Limitation Act would not apply to the facts of this case. In support of this argument reliance was placed on Prahlad Das v. Dasarathi : A.I.R. 1940 Pat. 117, Venkatranga v. Sithamma : A.I.R 1941 Mad. 440 and Deo Narain Singh v. Bibikhatoon : A.I.R. 1949 Pat. 401 in which it was held that where a decree that is sought to be executed was obtained against all the members of a Hindu joint family including the Karta the execution proceeding must continue against all of them and the Karta alone cannot represent the family in that proceeding.