MADHO PRASAD Vs. KANHAIYA LAL

JUDGEMENT

(1.) This appeal has arisen out of a suit for recovery of money filed by one Kanhaiya Lal. It is now not necessary to set out the facts of the case in detail. The claim was for Rs. 11,749-14-6. The suit was brought against Madho Prasad, Beni Prasad and Ragho Prasad who are brothers. Ragho Prasad was a minor. His eldest brother Madho Prasad was his certificated guardian, but as Madho Prasad refused to act as his guardian in the case Bindeshari Prasad Vakil was appointed his guardian ad litem. Bishambhar Nath Khazanchi was impleaded as defendant 4 on the ground that the hundis on the basis of which the suit was filed and which were originally in favour of Bishambhar Nath Khazanchi had been transferred by him in due course to Lala Kanhaiya Lal, the plaintiff. Various objections were raised by the defendants and they pleaded that the hundis had been obtained by Bishambhar Nath Khazanchi by undue influence and the said hundis were not for consideration. It was further pleaded that an account should be taken from Bishambhar Nath Khazanchi of the income of certain property which was the subject-matter of a litigation which went up to their Lordships of the Privy Council, In the written statement the defendants alleged that it was to avoid having to render an account of the income of the property that Bishamhhar Nath Khazanchi transferred the hundis fictitiously to the plaintiff, a relation of his, and it was pleaded that the plaintiff had no right to file the suit. The learned Subordinate Judge of Agra decreed the suit on 25 May 1933 and he held that the plaintiff was a holder in due course. On all the other points also, the learned Subordinate Judge held against the defendants. Defendants 1 to 3 filed this first appeal. Bindeshwari Prasad who was the guardian ad litem of Eagho Prasad having refused to join in the appeal, the appeal on behalf of Ragho Prasad was filed under the guardianship of Mt. Indrani under the Court's order dated 23 January 1934. The appeal was filed through Messrs. S.K. Dar, S.B.L. Gour and Din Dayal advocates.

(2.) In the year 1939 Ragho Prasad attained majority, but no application was made on his behalf for the removal of his guardian till several months later and it was on 13 March 1942 that this Court declared Ragho Prasad as major and discharged the guardian. Ragho Prasad on 11 March 1942, had engaged Mr. Gopal Behari, an advocate of this Court, who filed a vakalatnama. The Execution First Appeal No. 25 of 1935, has arisen out of certain proceedings in execution of the decree in this case. The two cases came up for hearing before this Court on 28 March 1944 and on that date an application was filed that the parties had agreed that all their disputes in these two cases be referred to the arbitration of Mr. Gopal Sarup Pathak and Mr. Shambhu Nath Seth, advocates of this Court, whose unanimous decision would be binding on them. The application, however, was signed by Beni Prasad one of the appellants, and by Pandit Gopi Nath Kunzru who signed himself as advocate for the appellants. Bishambhar Nath Khazanchi, one of the respondents, signed this application and Dr. K.N. Katju, advocate for Bishambhar Nath Khazanchi, also signed it. On the application being presented before a Bench of this Court, the two cases were referred to the arbitrators for their decision. The period originally given for making the award was three months from 29 March 1944. Pandit Gopi Nath Kunzru had been engaged on behalf of the appellants, that is Madho Prasad, Beni Prasad and Ragho Prasad minor through Mt. Indrani, and he had filed a memorandum of appearance in this Court on 2 September, 1941 on behalf of these appellants as instructed by Beni Prasad. On the strength of this memorandum of appearance Mr. Gopi Nath Kunzru was entitled to plead but he could not act. The arbitrators gave their award on 16 September 1944. On 24 July 1944, the date when the Court re-opened after the vacation, they filed an application for extension of time, but no orders were passed on that application (we have, however, by a separate order granted that application today) and on 16 September 1944 the arbitrators, as already stated, filed their award. Notice of the filing of the award was given to the parties by registered notices issued on 21 September and the objector received the notice sent to him on 23 September 1944. An objection was filed on his behalf on 23 October 1944 that he was not a party to this reference and he was not bound by the award.

(3.) The first point taken on behalf of the respondents is that this objection is barred by limitation. This point was evidently taken under a misapprehension that the notice of the award was given on 16 September 1944. In view of the fact that the notice was not served on the objector till 23 September 1944 and he had thirty days under Art. 158, Limitation Act, to file his objection the objection, was within time.