FIRM PIRTHIRAJ GANESH DAS Vs. KISHUN LAL

JUDGEMENT

(1.) This is a second appeal on behalf of defendant 1 from the decision of the learned Additional Judicial Commissioner of Chota Nagpur, reversing that of the Subordinate Judge of Ranchi, in a suit for a declaration that the purchase made by the appellant in Execution Case No. 61 of 1934 did not confer any title on him in respect of the properties contained in Schedule C of the plaint, and did not affect the right, title and interest of the plaintiffs.

(2.) In so far as it is necessary to state the facts of the case, they are as follows: one Bhani Ram had four sons Lachhminarain, Sheonarain, Ganpat and Balmakund. The plaintiffs-respondents are the son's sons of Balmakund as also his grand- daughter. Defendant-appellant 1 in this Court is a firm carrying on business in Calcutta. Defendant 2 is a firm called Ganpatrai Balabux (Balabux being the son of Ganpat). Ganpat's three sons are defendants 3, 4 and 5. Balmakund was impleaded as defendant 6. The plaintiff alleged that there was a suit for partition being Suit No. 388 of 1913 in the Court of the Subordinate Judge of Ranchi. The plaintiff in that suit was Balmakund aforesaid. He claimed one-third share in all the joint family properties including a certain firm carrying on business on behalf of the alleged joint family of the parties to that suit; that the sons of Ganpat started a new business under the style of Ganpatrai Balabux (defendant 2); that the plaintiff in that suit (defendant 6 in the present suit) claimed a share of the assets of the firm aforesaid though as a matter of fact that firm was not a joint family business nor was defendant 6 a partner of the firm even in his individual capacity; that in order to deprive defendant 6 of his just share in the admitted joint family properties defendant 1 entered into a conspiracy with defendants 3 to 5 to obtain a false credit against the said firm defendant 2; that in pursuance of that conspiracy they got up a promissory note for Rs. 28,460 in favour of defendant 1 purporting to have been executed by defendant 4 (son of Ganpat) as a partner of the firm defendant 2 on 21 October 1925; that defendant 1 instituted a false suit on the basis of the fictitious debt on the original side of the Calcutta High Court in January 1926 i.e. to say, only a few months after the alleged execution of the hand note. An ex parte decree was obtained in June 1926 against the said firm for Rs. 28,000.

(3.) It is further alleged that defendant 6 coming to know of the collusive suit and ex parte decree aforesaid, instituted a suit for setting aside that ex parte decree. That suit (No. 1958 of 1931) on the original side of the Calcutta High Court, was ultimately dismissed for non-prosecution in June 1938. Balmakund's application for restoration of the suit also stood dismissed in November of the same year. Soon after in January 1934 the decree-holder defendant 1 applied for leave to execute the decree against Balmakund under the provision of Rule 50 of Order 21, Civil P.C. In May 1934 the leave asked for was granted. Balmakund again in order to avoid execution against him applied for setting aside the order of the Calcutta High Court granting the leave aforesaid. That application stood dismissed in January 1935.