SASHI KUMAR SORKHEL Vs. CHANDRA KUMAR SAMADDAR CHOWDHURI

JUDGEMENT

(1.) This is an appeal by five defendants---defendants Nos. 1,3, 12, 13 and 18. The suit in respect of whish the appeal arises is a suit by which the plaintiffs claim, as reversionary heirs of one Puma, a 4-annas share in J 3 properties jointly with the defendants Nos. 1 to 11 who are said to be the owners of the other 12-annas share. The First Court decreed the suit with regard to all the 13 properties. The lower Appellate Court upheld the decision as regards properties Nos. 1 to 9 and reversed the decision of the First Court so far as regards properties Nos. 10 to 13. The appeal concerns properties Nos. 1 to 9 : but the plaintiffs have filed a cross-objection with regard to properties Nos. 10 to 13.

(2.) Now, it will be convenient before dealing with the points raised in the appeal to refer to the genealogical table whish will be found at page 29 of the paper book before us. One Krishna Chandra Surkhel had 4 sons---Bhairab, Rajballabh, Shib Chandra and Banga Chandra. Bhairab had a daughter and son Purna. Purna married Umatara. He died leaving only his widow- Umatara him surviving and no other heirs. On the widow's death the descendants of Bhairab's daughter, who are the plaintiffs, beeama heirs to Bhairab's estate. Rajballabh had a son Kali Mohan; it is not necessary to refer to the other members of Rajballabh's family, nor is it necessary to refer to Shib Chandra's family. On the 16 April 1861 sometime after Bhairab's death a suit was commenced by one Prasanna on a bond said to have been executed by Puma. The parties to the suit ware Puma's widow Umatara, Banga Chandra and Kali Mohan. Now, I think, there can be no doubt that if the debt was a genuine debt and the suit a bona file one, Umatara, for the purposes of the suit, represented Purna's estate and Puma's estate would be bound by the decision thereof. The suit was decreed on the 11 May 1831 and in October 1869 there was a sale in execution of the decree---She properties sold being the shares of the judgment-debtors in properties Nos. 1 to 9 which are claimed in this appeal. Tin properties were bought or purported to be bought by one Chandra. After an interval of many year?, namely, on the 2 February, 1910, Umatara commenced a and for a possession of a 4 annas share in properties No?. 1 to 9. Other properties, I understand, were included in the suit but we are not concerned with these. Her allegation was that she had been dispossessed and she alleged (inter alia) that the execution sale did cot pass any property inasmuch is the bond was forged. Toe suit was brought in the Munsif's Court and was valued at Rs. 1,100. The Munsif dismissed the suit on the 26 April 1911 and the learned Vakil for the respondent has shown us a copy of judgment in the suit. It appears, that so far as the merits were concerned, the findings were in favour of Umatara, but that she failed to obtain a decree because she did not ask to set aside the sals in execution. It seams, therefore, that although she succeeded on the merits she failed for technical reasons. On the 6 October 1915 Umatara died and the suit in respect of which this appeal arises was commenced on the 8 March 1913 in the Subordinate Judge's Court. The suit was valued at Rs 2,100. It was brought, as already attached, by the reversioners who became the owners of Puma's estate after the death of Umatara. The suit relates to the 9 properties said to have been sold in 1801 and to 4 other properties which are the subject-matter of the cross-objection. Now, as I have already stated, as regards properties Nos. 1 to 9, both the lower Courts held that Umatara did not represent the estate and that accordingly the reversioners were not affected by the previous litigation.

(3.) In the appeal before us 4 points have been urged. First, it is said that the decree of 1861 bound the estate as represented by Umatara as the decree was not fraudulent; secondly, it is said that the plaint in the present Suit contains no prayer to set aside the execution sale and. that the suit would not lie unless the execution sale is set aside; thirdly, it is said that the suit is barred by limitation; and lastly, it is said that the suit of 1910 operates as res judicata.