LAWS(PVC)-1941-12-48

HIRANMOY BHADURI Vs. PROBAL KUMAR PRAMANIK

Decided On December 18, 1941
HIRANMOY BHADURI Appellant
V/S
PROBAL KUMAR PRAMANIK Respondents

JUDGEMENT

(1.) This appeal by the plaintiff is in a suit under Order 21, Rule 63, Civil P.C. The plaintiff instituted Suit No. 561 of 1931 in the Original Side of this Court. The defendant in that suit was described : "Pramatha Nath Pramanik and Anukul Chandra Pramanik, a firm carrying on business at Ghurni and Goari in the District of Nadia, traders and landholders." The suit was decreed on 24 July 1931, against the defendant firm as described above.

(2.) The plaintiff's case in the present suit is that Protap Chandra Pramanik, Nilmani Pramanik and Hari Charan Pramanik were three brothers living jointly at Ghurni, that the brothers had a joint business which descended to their heirs; that Pramatha Nath Pramanik was the second son of Nilmani and Anukul is the son of Pratap; that after several successive deaths in the family, the above family business was carried on by Pramatha and Anukul as kartas on behalf of the family and that while thus carrying on the above family business they purchased goods from the plaintiff; that the amount claimed in the Suit No. 561 of 1931 above referred to was due by the plaintiff from the Pramanik family on this account. After having obtained a decree in Suit No. 561 of 1931, the plaintiff got the decree transferred to Nadia Court and took out execution of the same as per Execution Case No. 76 of 1933 and Execution Case No. 261 of 1934. The last named Execution Case was dismissed on 5 February 1935. Thereafter he started the Execution Case No. 156 of 1935 and this time execution of the decree was sought against the members of the joint family of the Pramaniks and attachment was prayed for of the property belonging to this joint family. In this execution case the dwelling house of the Pramaniks was attached and the present defendant Probal Kumar Pramanik objected to this attachment, claiming that he had purchased this property in 1934 at an auction sale held in execution Case No. 1117 of 1933, and that the property no longer belonged to the family of the Pramaniks. This Probal Kumar Pramanik is not a member of the Pramanik family. The plaintiff decree-holder in that objection case asserted that the claimant was merely a benamidar of the family. The claim however was allowed by the executing Court on 8th February 1936. Thereupon the plaintiff instituted the present suit on 19 November 1936. In this suit he prayed for a declaration that the defendant was a mere benamidar of the Pramaniks and that the property in dispute belonged to the joint family of the Pramaniks and consequently was liable to attachment and sale in his Execution Case No. 156 of 1935. The defendant appeared and filed a written statement contesting the claim of the plaintiff on various grounds and ultimately the learned Munsif framed 17 issues on the pleadings of the parties. Of these issues, only issues 2 and 3 were first picked up for hearing and these were accordingly heard by the learned Munsif with the concurrence of both the parties. The issues run as follows : (2) Is the suit maintainable according to law and in its present form? (3) Is the suit bad for vagueness?

(3.) The learned Munsif then proceeded to consider these two issues together for the sake of convenience and decided them both against the plaintiff. He held (1) that the plaint was really vague, inasmuch as it did not make it clear how a decree standing against a firm which was in all appearance a contractual one, could be made available against the members of the family and (2) that the present suit was not maintainable, inasmuch as the decree obtained by the plaintiff being against the firm Pramatha Nath Pramanik and Anukul Chandra Pramanik and not against the joint family of the Pramaniks the execution case against the family was untenable, and consequently, the execution against the joint family property could not proceed. He, therefore, dismissed the suit. On appeal by the plaintiff, the learned District Judge of Nadia affirmed this decision holding that the decree in question was against a contractual firm and not against the joint family of the Pramaniks and con-sequently the prayer for its execution by attaching the joint family property was not maintainable. Mr. Mukherjee appearing for the appellant, urged the following points in support of this appeal : (1) that the present suit being one under Order 21, Rule 63, Civil P.C., the plaintiff is entitled to succeed only on establishing the right which he claimed to the property in dispute in his execution case and that therefore the only relevant point for decision in this suit was whether the property belonged to the Pramanik family or whether it belonged to the defendant; (2) that the present execution case having been taken out against the joint family of the Pramaniks and they not having raised any objection to the execution, it was not open to the present defendant who was a stranger to that family to raise the question in the present suit whether the decree should be executed against the joint family; (3) that the issue raised and tried did not at all cover the points decided by the Courts below and that this has greatly prejudiced the appellant inasmuch as he had no opportunity of meeting the points raised and decided against him by the judgments; (4) that, at any rate, the construction put upon the decree that it was only against a contractual firm and not against the joint family of the Pramaniks was wrong and was based on insufficient materials.