L RAM CHARAN DAS Vs. BHAGWAT SARAN

JUDGEMENT

(1.) This appeal is brought by the decree-holder, Ram Charan Das against certain objectors, Bhagwat Saran, Ved Prakash and Rameshwar Prasad, a receiver. The appeal memorandum simply states that the appeal is against the decree of the Civil Judge of Moradabad dated 4 May 1938, and does not set out what relief is desired. The grounds of appeal deal with the case of Ved Prakash who was an objector and presumably the appeal is intended to be against the decree of the lower Court so far as it concerns Ved Prakash, The decree-holder had made an application for execution of the decree in Original Suit No. 60 of 1929 and F.A. No. 521 of 1930 in the High Court. The objection of Ved Prakash described as the minor son of Bhagwat Saran under the guardianship of one Babu Ram is that the decree was in no case passed against the objector and execution thereof cannot be taken out against him. This objection has been allowed by the Court below which has held that the decree in the suit is not binding on Ved Prakash. The Court also held that the representatives of defendants 2, 12 and 13 were not made a party to the appeal and the case abated as against them and the decree of the Appellate Court is not therefore binding on the heirs of the defendants- respondents aforesaid. In the present appeal there is no mention of a relief against the representatives of defendants 2, 12 and 13. It is true that ground No. 4 does refer to three persons Ram Sarup, Imdad Husain and Mt. Rukman as being merely pro forma defendants-respondents and therefore no substitution was necessary and the decree was capable of execution. The Court below has held that the decree was capable of execution.

(2.) The Court below held however that the case had abated as against the representatives of defendants 2, 12 and 13. I do not consider it possible to deal with this matter in regard to Ram Sarup, Imdad Husain and Mt. Rukman in the present appeal because their legal representatives have not been made parties to this appeal. If the appellant desires to bring any matter in regard to these persons before this Court he should make them parties to his appeal. Therefore the present order in appeal is confined to the case of the objection of Ved Prakash which is the subject-matter of the other grounds of appeal. In suit No. 60 of 1929 Ram Charan Das, the sole plaintiff, sued his son Bhagwat Saran, defendant 1, and a number of other persons who were tenants, defendants 2 to 16(17). The plaintiff Ram Charan Das then made an application on 15 May 1929 asking that the names of Prem Prakash alias Ved Prakash aged about 6 years and Om Prakash aged about 4 years, minor sons of Bhagwat Saran under the guardianship of their father Bhagwat Saran may be added to the heading of the plaint as defendants 18 and 19.

(3.) On 29 May 1929, Bhagwat Saran made an application stating that the plaintiff had applied for his minor sons Prem Prakash and Ved Prakash to be defendants 18 and 19 and that he did not desire to be their guardian, that their mother was present and the minors were living with her, and that the mother Mt. Morni should be guardian. On this the Court wrote the order: "The mother of the two minors may be appointed their guardian. Sd. Makhan Lal, 29 May." It will be noted that the names of the minors were given by the father as Prem Prakaah and Ved Prakash whereas they had been given by the grandfather, the plaintiff, as Prem Prakash alias Ved Prakash and Om Prakash. This is the matter which has given rise to the objections in this case. It is common ground between the parties that Bhagwat Saran had a number of children and that three of these were sons, of whom one was born in 1924 and one was born in 1925. There was a third son born about 1927 who died in that year, and Ex. 26, the entry of his death, is produced showing that this son died on 5 March 1927. The suit was filed on 29th April 1929 and at that period it is common ground between the parties that Bhagwat Saran had only two surviving sons, one born in 1924 and the other one in 1925. The question is solely in regard to the names of these two sons. For the objector Ved Prakash, it is contended that the names of the two sons were Prem Prakash who was born in 1925 and Ved Prakash who was born in 1924. The decree-holder adhered to his original application in the plaint giving the names of his grandsons as Prem Prakash alias Ved Prakash and Om Prakash and he alleged that the minor son who died in 1927 was only called Lala and did not have the name of Om Prakash which was alleged for objector.