KANHAIYA LAL Vs. SURAJ KARAN

JUDGEMENT

(1.) The admitted facts in this case are as follows: The plaintiff Kanhaiya Lal, who is the appellant in this Court, sued a certain firm, on foot of two promissory notes, for money. The firm was styled Bhairon Prasad Mahadeo Prasad. Mangli Prasad was mentioned as the party on whom the summons in the suit was to be served. The case was compromised and Mangli Prasad agreed with Kanhaiya Lal to pay the decretal amount by instalments. He also earmarked a certain property, as belonging to the firm, for the purposes of raising the money. Mangli Prasad had, at the date of contracting the debt, and at the date of the decree, two brothers, namely Suraj Karan and Phulchand, both of whom were minors at the time. Kanhaiya Lal, having got his decree, brought the property mentioned in the decree to sale. Thereupon, the brothers of Mangli Prasad came to the Court with an objection, which in our opinion was one under Order 21 Rule 58, Civil P.C. They said they had nothing to do with the simple money decree that had been passed against their brother, and that their share in the property should be exempted. The Court found (see p. 20 of the printed record) that the objectors were not bound by the decree, that their share in the property was two-thirds, and ordered the exemption of the said share from attachment. After this the decree-holder, Kanhaiya Lal, filed an application for review of judgment. Being unsuccessful in his attempt to obtain a reversal of this judgment, he made an application under Order 21, Rule 50 (2), Civil P.C. He sought a declaration to the effect that the brothers of Mangli Prasad, Suraj Karan and Phulchand, were liable, as partners of the firm Bhairon Prasad Mahadeo Prasad, to pay the decretal amount. This application was successful in the Court of first instance. The brothers of Mangli Prasad filed an appeal to this Court. The learned Judges before whom the appeal came differed in their opinions. One of them was of opinion that the order dated the 6 September 1918 stood as a bar to the maintenance of the application of Kanhaiya Lal. There was a Letters Patent appeal and this opinion of the learned Judge, already quoted, was upheld. After all this had happened the suit out of which this appeal has arisen was instituted by Kanhaiya Lal on the 16 July 1923.

(2.) The suit was resisted on various grounds including the ground that the defendants were not liable as partners of the firm. We may mention here that Phulchand has since died and he is now represented, on the record, by his minor son, Kapur Chand. Suraj Karan is alive. A further defence to the suit was that it was barred by limitation. The learned Subordinate Judge found on the merits of the case in favour of Kanhaiya Lal, that is to say, he found that the defendants were partners of the firm at the date of the decree, that the decree was validly passed, and that, therefore, the defendants were liable to pay the decretal amount out of their personal property. On the question of limitation, however, the learned Judge was of opinion that the suit was barred by the one year's rule of limitation. The plaintiff asked for the exclusion of the time during which he was prosecuting his application for review of judgment and his application under Order 21, Rule 50, Civil P.C. The learned Judge agreed that if the period during which the plaintiff's application, under Order 21, Rule 50, was pending could be excluded, the suit would be within time. But he was of opinion that the time could not be excluded under the provisions of S 14, Limitation Act.

(3.) In this Court, in appeal, it had been urged that the learned Judge was wrong in his view and that the period of the previous litigation should have been excluded.