KANHAIYA LAL Vs. KAPUR CHAND

JUDGEMENT

(1.) On the 9 of April, 1915, a firm, Bhairon Prasad and Mahadeo, borrowed Rs. 2,500 on a promissory note, the money, having been lent by; one Gajadhar. On the-next day the firm borrowed a similar amount from another firm, and both these notes subsequently were purchased by Kanhaiya Lal, the respondent in this matter. On the 10 of August, 1916, Kanhaiya Lal brought a suit for the recovery of the Rs. 5,000 and interest. On the 28 of November, 1916, the suit was compromised by one Mangli Prasad. At that date Mangli Prasad had a younge? brother Phul Chand and a still younger brother, by name Suraj Karan, who was a minor. Mangli Prasad, purporting to act as a member of the firm, agreed in writing to pay Rs. 6,120 in certain instalments, assented to the insertion- of the usual default clauses in the compromise and set aside certain immovable property which he declared to be hypothecated to the due discharge of this debt. In the document of compromise he stated that Phul Chand and Suraj Karan were his brothers, and he spoke of them as joint owners with himself in the property specified at the foot of the deed, and also as members of the firm. That compromise was embodied in a decree of the 28 of November, 1916. Kanhaiya Lal, no doubt, was confident that he had got a decree which, if default were made, could readily be put into execution. Default was made, and on the 30 of July, 1917, the respondent applied for execution. On the 8 of August he asked for an injunction restraining the transfer of, or creation of charges over, this property, and on the 18 of August this property was attached On the 8 of September and again on the 12th of September, 1917, Phul Chand for himself and his younger brother filed two applications. The first application was to set aside the decree. The second application was to set aside the attachment on the ground that the property sought to be attached, and which was the subject of hypothecation in the compromise decree, was wholly and entirely the property of Phul Chand and Suraj Karan and the firm had no concern with it at all, and that they; the two younger brothers, were separate from Mangli Prasad Objections were lodged by the respondent on the 3 and 10 of November, and amongst these objections the present respondent stated that, it was not necessary in the suit to disclose the names of all the persons who were the partners. He further stated that Mangli Prasad had acted throughout as karta of the joint Hindu family, that he and his two brothers were joint, that the business was the business of the family, and the property com-prised in the compromise decree was property of the joint family. The grounds of the application of the 12 of September alleged, as we have stated, a separation by Phul Chand and Suraj Karan from Mangli Prasad; it gave no date of that separation and no particulars other than the assertion that as the result of that separation Mangli Prasad had been given a block of property elsewhere as his share, whilst they had got other property, comprising inter alia the property sought to be taken in execution.

(2.) It appears from the very scanty record that lies before us that the learned Subordinate Judge apparently grouped the two applications of the 8 and 12 of September together. We have studied with great care, and with the assistance of Mr. Dube and Mr. Lalit Mohan Banerji, the order that he passed, because it is agreed that, if it should transpire that he in fact decided as a relevant matter that which at a later stage (in May, 1919) the learned Subordinate Judge was again asked to decide, the decision of Mr. Justice Walsh, to which we will refer later, will be the decision to be preferred.

(3.) The exact text of the order is to be found at page 140 of I.L.R. 44 Allahabad. The order sheet of the 6 of September, 1918, runs as follows: The decree-holder has obtained a simple money decree against defendant No. 1, that is, the firm Bhairon Prasad and, Mahadeo. The present objectors were not parties to the decree. Mangli Prasad appeared for the firm. These objectors arc brothers of Mangli Prasad. They were never disclosed in the plaint as partners. The property attached has not been proved to be the property of the firm. Under the circumstances the attached property must be the property of the objectors as well as that of the judgment-debtor, Mangli Prasad, representing the firm. Ordered, 2/3 share in the property attached be released; parties to bear their own costs.