RADHE SHIAM Vs. SHYAM LAL

JUDGEMENT

(1.) This is an appeal from an order passed by the Deputy Commissioner of Kumaon exercising the jurisdiction of a civil Court. The appellants objection to attachment of certain property, which they alleged to be ancestral property was dismissed on the ground that a previous decision between the parties operated as a bar to the objections subsequently raised.

(2.) The circumstances which led to the objection in question are briefly these The respondent Shyam Lal instituted a suit on foot of a promissory note purporting to have been executed by three persons; Sakhan Lal, and Bisant Lal and Bishambhar, who were impleaded as defendants 1 to 3. The son of defendant 1 and two sons of defendant 2 were also impleaded as parties on the allegation that the debt contracted by the first three defendants were such as bound the entire family. The sons, that is, defendants 4 to 6, contested the suit on the ground that the debt to which the promissory note related had been contracted for immoral purposes. The Court first struck an issue which threw the onus of establishing the unlawful character of the debt upon the sons. Subsequently, on a representation made by defendants 4 to 6, the Court altered the issue so as to throw the burden of proof on the plaintiff as regards the character of the debt. Thereupon, the plaintiff put in an application discharging the defendants 4 to 6 from the array of parties. The Court ordered that the suit be dismissed as against defendants 4 to 6, i. e., the sons of defendants 1 and 2. There can be no doubt that the plaintiff withdrew the suit as against defendants 4 to 6, whom he had originally impleaded; and accordingly the suit was dismissed as against them. Though Order 23, Rule 1, Civil P.C., was not referred to, there can be no doubt that the plaintiff meant to withdraw the suit against defendants 4 to 6 and the dismisal of it was based on the withdrawal. This happened on 12 April 1930. The suit went to trial as against defendants 1 to 3, and eventually a decree was passed against them on 8 July 1930.

(3.) The plaintiff had taken out attachment before judgment at an earlier stage of the suit. After the suit was withdrawn and dismissed as against defendants 4 to 6, they applied, on 2 June, 1930, that the property attached before judgment belonged to them and should be releised. In dismissing their objection the Court held that there was nothing to show that the property attached, or any part thereof, separately belonged to the minors. After a decree was passed against defendants 1 to 3, the decree-holder proceeded to have the property sold in execution. Defendants 4 to 6 again objected, on 30 June 1931, urging, inter alia, that the debt in respect of which the respondent had obtained the decree against defendants 1 to 3 was tainted with immorality and consequently the property which had been attached and was to be sold in execution of the decree, being joint family property, belonged to defendants 4 to 6 as well as defendants 1 to 3 and could not be sold.