SHAMBHU DYAL SINGH Vs. ISWAR SARAN

JUDGEMENT

(1.) The facts of the litigation out of which this appeal arises afford some indication of the hardness of the way of the decree-holder in India. Ram Richpal Singh is the father of two sons, Shambhu Dayal Singh and Girja Dayal Singh. They were members of a joint Hindu family governed by the Mirakshara Law. Shambhu Dayal Singh was born about 1908, Girja Dayal Singh was born about 1910. Before they were born, the father, Ramrichpal Singh, commenced borrowing money from the Kayasth Trading Company, Gorakhpur. He continued borrowing money and in 1913, when Shambhu Dayal Singh was five and Girja Dayal Singh was three, he executed a promissory- note for Rs. 2,028, and in 1914 executed a second promissory-note for Rs. 350 in favour of the same Company. In 1916 the Company obtained a decree on the first promiss ry-note and sold the decreeholder's rights under that decree together with this second promissory note to Munshi Chhotu Lal. Munshi Chhotu Lal subsequently obtained a decree on the second promissory-note later. Both decrees were against Ramrichpal Singh alone, he being the executant of the promissory notes in question. In execution of the first decree Munshi Chhotu Lal attached certain property in 1918. Shambu Dayal Singh, aged ten, and Girja Dayal Singh, aged eight, objected in execution proceedings that two-thirds of the property so attached was not liable to attachment under the decree for the following reason:

(2.) Their allegation was that they and their father were members of a joint Hindu family, and that in the year 1916 after both the decrees had been passed against their father they, the elder: then being eight, and the younger, then being aged six, had separated from their father by means of a partition decree which had been obtained not in the Gorakhpur District where they resided and where the property under attachment is situated, but in the Fyzabad District under the jurisdiction of the Judicial Commissioner of Oudh. Their plea was accepted in 1918 by the Court executing the first decree an a two-thirds share of the property in question was exempted from attachment accordingly. Within a year of the success of the plea of Shambhu Dayal Singh, an Girja Dayal Singh, Munshi Chhotu Lal instituted a suit in the Court of the Subordinate Judge of Gorakhpur for a relief which must be examined rather closely. The relief which he sought was for a declaration that the decree of the 20 December 1916 passed by the Fyzabad Court was invalid; secondly, for a reversal of the order passed in execution on the 27 July 1918 declaraing two-thirds of the property not liable to attachment, and, thirdly, for a declaration that the whole of certain family property was liable to attachment and sale in execution rot only of the first decree but of the second decree, and, as far as I can gather, he also desired that the two-thirds share of the property already exempted should be liable for the satisfaction of both decrees. Upon the facts before me it does not appear that he has as yet put the second decree into execution. In the meanwhile, the situation has become further complicated by the fact that Ramrichpal Singh has become an insolvent. The Receiver was added as a party to the suit.

(3.) The learned Counsel who represents the plaintiff in this appeal has said that all that the plaintiff wishes is for a declaration that both these decrees bind as much joint family property as is at present in the hands of Shambhu Dayal Singh and Girja Dayal Singh and that he wants nothing more. The plaint might have been drafted more artistically. It, however, in my opinion, suggests that that is the actual relief which the plaintiff desired from the beginning. In respect of the father's property, such as it is, he can of course only obtain such satisfaction as the Receiver can give him and what he clearly now desires is that he shall be at liberty to execute both his decrees against the joint family property which has come to the sons, and which is not in the lands of the Receiver. The Trial Court decided that the promissory-note of 1913 was executed in satisfaction of antecedent debts and that the whole of the joint family property was thus liable under the decree passed upon it. It held that the second promissory-note had not been executed in lieu of antecedent debts or for legal necessity and that, therefore, the joint family property was not liable under the decree passed upon it. It gave relief accordingly. The learned Second Additional District Judge in a careful and reasoned judgment on an appeal by the defendants and a cross-objection by the plaintiff decreed the whole relief for which the plaintiff had prayed. The present appeal is preferred by the two minor children, Shambhu Dayal Singh and Girja Dayal Singh. Before I discuss the grounds taken in the Memorandum of Appeal it is necessary to go back to the original pleadings, and it is to be noted, that not only are the reliefs sought completely separate but that in two instances they (sic)epen upon separate causes of action. The first relief is for a declaration that the decree partitioning the property between the father and the two sons which was passed by the Court of Fyzabad is invalid as against the plaintiff. The second relief, for a reversal of the order in execution exempting the sons property, is clearly based on Order XXI, Rule 63 and the cause of action there arose upon the order exempting that property which was passed on the 27 July 1918. The third relief, however, for a declaration that other property held by the present appellants is liable in execution of the first decree and that that other property and the property already exempted are liable in execution of the second decree, is based not upon the order of the 27 July 1918 but upon the denial of the plaintiff's rights to execute against such property which was implied in the objection filed in 1918, upon which the order of the 27 July 1918 was passed. There were, thus, three declarations sought and a Court-fee of Rs. 30 should have been paid and only Rs. 20 were paid but that error can be corrected now.