NIRANJAN DAS Vs. LIQUIDATOR PURI BANK LTD

JUDGEMENT

(1.) THIS is an appeal from an order of the Hon'ble Company Judge rejecting an application made by the petitioners praying that Ex Case No 1/65 should not proceed against them. The Official Liquids for Pun Bank Ltd which is under liquidation obtained a decree against one Krishna Chandra Das and started execution proceedings against him praying therein that the properties covered by items Nos. 1 to 13 of the schedule appended to the application be attached and sold for satisfaction of the decree. During the pendency of the proceeding Krishna died on 12-10-60, leaving behind him the petitioners as his heirs. The petitioners nos. 1 and 2 are his sons. Petitioner No. 3 Bimala Dei is his widow and petitioner no. 4 Mukta Dei is his mother. The four petitioners were substituted as legal representatives in the Execution Case and notices under Order 21, Rule 22 C. P. C. were served on them on 21-6-61. They, however did not appeal in Court to file any objection. On 28-8-61 order was passed for issue of a writ of attachment of the properties and attachment was actually effected on 10-9-61. On 19-1-62 an application was filed in Court purporting to be on behalf of the petitioners by an advocate who held no cower from the petitioners by praying that the execution proceeding against the latter be dropped. The Court rightly held that no action could be taken on such petition. On 22-1-62 sale proclamation was issued and on 3-4-62 the immovable properties covered by lots 1 to 13 were sold. The petitioners thereupon filed an application under Order 21, Rule 90 C. P. C. to set aside the sale and after enquiry the sale was set aside. Fresh poclamation was issued on 23-10-62 and a week later, on 29-10-62 the application giving rise to this appeal was filed by the petitioners. It is necessary to refer at length to the averments made and the prayer contained in the petition more so, because the particular provisions of the Code under which it has been filed have not been mentioned. It is allleged that the Judgment Debtor krishna Chandra Das never incurred these loans for his family necessities. Krishna chandra Das had kept a concubine and hence cut off all connections with the joint family consisting of himself, his father and brothers after receiving Rs. 400/-in lieu of his share in his joint family properties. He has also abandoned his wife and children, petitioners Nos. 1 to 3 who were thereafter being maintained by krishna's father Satrughna In the circumstances Krishna had no manner of right to any share in the joint family properties covered by items Nos. 2 to 13 of the schedule and consequently petitioners Nos. 1 to 3 also have no right or title to any share therein. So far as item No. 1 of the schedule is concerned, it is contended that it is the stridhan property of petitioner No. 3 the wife of Krishna and mother of petitioners Nos. 1 and 2. Krishna's father Satrughana died in 1961 and thereafter his widow petitioner No. 4 is living with her other three sons and is being maintained by them without herself having properties of her own. In view of the averments made above, the petitioners prayed that "the aforesaid execution proceeding against these petitioners may please be dropped. "

(2.) THE Puri Bank filed a counter stating that Krishna's alleged relinquishment of his share in the joint family properties after receiving Rs. 400/- from his father is not true, that he was doing contract business at Cuttack and was being financed by the joint family and that he had taken loan from the Puri Bank Ltd. for the joint family business. Hence the petitioners are liable to discharge the debt to the extent of Krishna's share in the joint family properties. It is not true as alleged in the petition that property covered by lot No. 1 is the stridhan property of petitioner no. 3, Bimala Dei the wife of Krishna, but it was acquired by Krishna Benami in the name of his wife

(3.) AS stated before, the particular provision of law under which the petitioners filed the present application has not been stated in this petition. But in the Court of the company Judge, the enquiry proceeded on the footing that the application if one under Order 21 Rule 58 C. P. C. and the learned Judge after enquiry held that item no. 1 is not stridhan property of petitioner No. 3, but a part of the family properties and that the case that Krishna relinquished his share in the joint family properties as alleged in the petition has not been established. Under Rules framed by the High Court under the Companies Act, the period prescribed for filing a claim petition Under Order 21, Rule 58 C. P. C. is 15 days from the date of attachment. Admittedly the present application was filed long after expiry of that period. On the footing that the application filed by the petitioners was one under Order 21, rule 58 C. P. C. objection was taken by the decree holder that the application was barred by limitation. This objection was, however', overruled by the learned Judge. But having regard to his finding on the merits of the claim, he dismissed the petition. Hence this appeal.