MANMOHAN DAS Vs. MTRADHA RANI

JUDGEMENT

(1.) This is an appeal by one of the judgment-debtors, Lala Man Mohan Das, against an order passed under Section 47, Civil, P.C., whereby his objection to execution was dismissed by the learned Civil Judge. The facts of the case cover a very long period and a large field and are, as such, complicated. They are, however, briefly these. On 28 August 1923 some amount had been advanced to a firm called the United Provinces Anilinedyes Co., which was a partnership consisting of four partners. Baldeo Narain Tandon, who had made the advance, brought a suit, Suit No. 102 of 1926, on 27 August 1926, in the Court of the Subordinate Judge of Allahabad against four persons who were the partners of the firm, Mata Prasad, Lala Man Mohan Das, Pt. Krishna Kant Malaviya and Rai Bahadur Mathura Prasad Mahrotra. The suit was for recovery of Rs. 14,950 and Rs. 5872 interest. Various defences were raised to the claim, with which it is not necessary to deal at this stage. The learned Subordinate Judge dismissed the suit on 18 December 1928. Against this decree a first appeal was preferred to the High Court, F.A. No. 129 of 1929. This Court set aside the decree of the Court of first instance and decreed the suit by its judgment of 23 November 1932. Soon after the decree of the High Court Baldeo Narain, on 14 December 1932, transferred his rights under the decree to a man named Shyam Sunder for a sum of Rs. 20,322. Lala Man Mohan Das made an application for leave to appeal to His Majesty in Council. This application was No. 93 of 1934. Their Lordships of the Judicial Committee finally dismissed the appeal on 20 December 1937.

(2.) On 9 January 1933 Shyam Sunder applied for execution of the decree, under which the amount due on that date was Rs. 7753-8-6. Shortly after the application, Shyam Sunder died on 25 February 1983. On 10 March 1933 Lala Man Mohan Das took exception to the execution on the ground that Shyam Sunder had died and the prayer for substitution of his name in place of the original decree-holder could not be granted and that the purchase by Shyam Sunder of the rights of Baldeo Narain Tandon was fictitious and without consideration. A further objection was taken that the amount due to him from Baldeo Narain should be set off. On 15 March 1933 Brij Mohan Lal and Ram Gopal, the sons of Shyam Sunder, applied for substitution of their names in place of their father and prayed for the continuance of the proceedings in execution. Notices were issued on 20th March 1933. On 8 April 1933 the Court made a note that the service of notices on Mata Prasad and Lala Man Mohan Das was sufficient and they raised no objection. Notices against others were issued afresh. It might be noted here that no fresh objection was raised by Lala Man Mohan Das beyond that which had been made by him on 10 March 1933. The objection of 10 March 1933 was taken up for decision on 26 August 1933. On that date, according to the order-sheet, Mr. Gaya Prasad, Vakil, was present on behalf of Lala Man Mohan Das and Mr. Nawab Bahadur, Vakil, represented the sons of Shyam Sunder, the purchaser of the decree. Some evidence was led on behalf of the sons of the purchaser of the decree, but no evidence was adduced on behalf of Lala Man Mohan Das. The Court upheld the transfer of the decree by Baldeo Narain in favour of Shyam Sunder and also ordered the substitution of the names of his sons in place of the original decree-holder, Baldeo Narain. It dismissed the objections of Lala Man Mohan Das. This order of the learned Judge rejecting the objection of Lala Man Mohan Das and ordering the substitution of the names of the sons of Shyam Sunder in place of the original decree-holder, Baldeo Narain, on the finding that the transfer was a good transfer, was never challenged in appeal, although it clearly fell within the purview of Section 47, Civil P.C. It, therefore, became final. This is one chapter of the case and we might leave it at this for the time being.

(3.) The Agra branch of the Benares Bank had a decree against Baldeo Narain, the original decree-holder. It secured an order from the Munsif of Agra for attaching the decree of Baldeo Narain against Lala Man Mohan Das and others. This decree was actually attached. It appears that one Gobardhan Das had also secured a decree against Baldeo Narain in Suit No. 126 of 1926 and he also put his decree in execution. This was execution case No. 145 of 1933. The execution of Gobardhan Das was opposed by the sons of Shyam Sunder on the ground that no rights had remained with Baldeo Narain and no execution could, therefore, proceed. The execution Court came to a finding that the transfer in favour of Shyam Sunder was not a good transfer. As a result of this finding the application in execution made by the sons of Shyam Sunder was dismissed on 13 February 1934, although, in point of fact, this should not have been the necessary consequence, inasmuch as the two execution cases were separate. Be that as it may, the sons of Shyam Sundar Das challenged the order dismissing their objection by means of a regular suit, Suit No. 6 of 1935. This suit was decided on 30 September 1935, in which they secured a finding that the transfer of decree No. 102 of 1926 in favour of Shyam Sunder was a valid transfer.