PANCHI MANDAL Vs. GENA MANDER

JUDGEMENT

(1.) This was a rule issued on the trial Court to show cause why the decision in Suit 26 of 1924 should not be set aside and why a decree should not be passed in terms of the award. The circumstances under which this case came before the High Court have been dealt with in some of the previous orders of this Court. In order to understand them I shall put the circumstances shortly. There were two brothers Nathan and Darbhangi. Darbhangi's wife was called Ima and his daughter was called Sonabhati. His sons were dead. Nathan had four sons who were minors. After the death of Darbhangi, Ima and his daughter lived with Nathan. Nathan had borrowed a sum of Rs. 200 from Gena Mandar on 26 June 1919. It is said that after the death of Nathan one bigha of land was given to Gena by a registered sale deed. Gena married Sonabati, and from Ima he got half of the joint property on transfer. With regard to this transfer a panchayat was held on 29 July 1923. It appears that almost all the villagers took part in the panchayati and their award was to the effect that nothing was due to Gena. On 2 August, 1923, just a few days after the date of the award, Gena filed a suit against, the minors to realize his debt of Rs. 200. This suit was No. 648 of 1923. It was decreed ex parte on 11 December 1923.

(2.) There is some dispute as to whether the minors actually appeared or not through their guardian, but at present we need not express any opinion upon that. On 4 February 1924 (there is some dispute about the exact date, because it may be 12 February as appears from the record) a petition was filed on behalf of the minors under Para. 20, Schedule 2, Civil P.C. requesting the Court to pass a decree in terms of the award. This suit was dismissed on various grounds, the two chief grounds being that the petition was filed beyond time and that all the arbitrators were not made parties. It appears that the petitioners brought a suit, which was Suit No. 52 of 1925, on 25 May 1925, to set aside the decree passed ex parte in Suit No. 648 of 1923, on the ground that the decree was vitiated by fraud. But it further appears that they filed the suit as paupers. The Munsif dismissed the suit. The appeal before the District Judge of Bhagalpur was also dismissed, as there was no point of law; and a revision before this Hon ble Court was also dismissed. Mr. Gupta, appearing on behalf of the petitioners, urges that the trial Court was wrong in dismissing the Suit No 26 of 1924 on the ground that all the arbitrators were not made parties. This contention of Mr. Gupta is justified for there is no provision of law under which it is necessary to make the arbitrators parties to the suit. On the question of limitation the position is different. Mr. Gupta urges that during the minority of the petitioners limitation did not run against them. Mr. Janak Kishore, appearing on behalf of the opposite party, points out that Section 6, Lim. Act, does not apply to cases tinder para. 20, Schedule 2, Civil P.C. see Ram Ugrah Pande V/s. Achraj Nath 1915 All 369 and Ma Tbein Tin V/s. Maung Ba Than 1923 Rang 226. In the face of these decisions it must be held that the application was time-barred. We regret that we are obliged to arrive at this decision because there are circumstances in the case which we could have wished to investigate but the law leaves us no choice in the matter. The rule is therefore discharged. Courtney-Terrell, C.J.

(3.) I agree.