RAM NARAIN-KISHUN DAYAL Vs. RAM PRASAD

JUDGEMENT

(1.) These are two connected appeals brought by the plaintiff firm of Ram Narain- Kishun Dayal of Cawnpore against decrees of the learned First Subordinate Judge of Cawnpore dismissing their two suits. The circumstances which gave rise to this litigation are as follows: There was a firm in Cawnpore by the name of Sitaram Nathmal and the plaintiff firm had dealings with it by supplying cloth, and the plaintiff firm brought a suit No. 280 of 1919 against the firm of Sitaram Nathmal. At that time there were two partners in that firm, Nathmal and Balmakund, and on 23 June 1919 a written statement was filed on behalf of the firm by Nathmal, stating that he was a partner in that firm.

(2.) Subsequently, at a date not shown, the parties in that suit agreed to refer the matter to arbitration. After the agreement Nathmal died in January 1920, and it is stated in the judgment that prior to that date no proceedings had been taken in arbitration. Subsequent to that date proceedings in arbitration took place, and an award was filed on 11 December 1920, and on that award a decree was framed against the firm Sitaram Nath-mal. The award granted a sum to the plaintiffs of Rs. 68,136-1-0. By this decree of 23 December 1920, the decrectal amount was to be paid in two instalments: one instalment at once and the other instalment within two months from the date of the decree. There was a revision proceeding in the High Court at the instance of the defendant firm. Execution applications were taken out in regard to each instalment, and execution was stayed on execution of two security bonds the one dated 12 January 1921 and the other dated 10th March 1921. These bonds were executed by two of the sons of Nathmal, Ram Prasad, on behalf of himself and his minor brother Chhotey Lal, and Lachhi Ram. These bonds hypothecated in the case of the bond dated 12 January 1921, a house 25/11, and in the case of the bond dated 10 March 1921, a house 48/107 and a grove. The application in revision was dismissed. The decree-holders then applied for execution of their decree in respect of both instalments on 23 July 1921 : see p. 75 of the paper book. That application stated that summons should be served on Balmakund, but an objection was filed on behalf of Ram Prasad and Lachmi Narain the two major sons of Nath mal. Their objection was disallowed by the learned Subordinate Judge on 3 January 1922, but in that proceeding he held: the share of their minor brother Chhotey Lal is not liable to be sold and attached in satisfaction of the decree in question.

(3.) The present plaintiffs took this execution order in appeal to this Court, but as they did not make Chhotey Lal a party, their appeal was dismissed. Accordingly the decree-holders put up for sale the 2/3 of the property of Nathmal owned by his two adult sons Ram Prasad and Lachhi Ram and the 2/3 share in house 55/11 was sold for Rs. 15.700. This had been hypothecated for Rs. 37,402-13-6, and accordingly, in Suit No. 217/25 the plaintiffs sue for the balance of Rs. 21,702-13- 6, and they asked that a decree for that amount should be passed, and if the defendants do not pay, the hypothecated property not already sold, that is one- third share of Chhotey Lal the minor son of Nathmal, should be sold. Now this one- third share of Chhotey Lal was attached by Messrs. Ganesh Das-Ram Gopal of Calcutta in execution of a simple money decree against Nathmal Parshadilal and at an auction-sale this one-third share of Chhotey Lal was purchased by Munna Lal who is defendant 5 in Suit No. 217 of 1925, and he is the contesting respondent in this case. The circumstances in the Appeal No. 325 of 1926, are similar, and the real contesting respondents are the purchasers of the one-third share of Chhotey Lal which was sold in execution, that is defendant 5 Jitmal who purchased the grove and defendants 6 and 7 who purchased the share of the house.