RAM SARUP KALWAR Vs. MAHABIR KALWAR

JUDGEMENT

(1.) This is an appeal by two defendants, Ram Sarup Kolwar and Sukhdeo Kalwar in a suit for a declaration that the decree obtained by Sukhdeo against the plaintiff Mahabir in suit No. 338 of 1923 from the Court of Small. Causes, Rai Bareili, was fraudulently obtained, for the cancellation of the said decree and for an injunction restraining Sukhdeo from executing the decree against the plaintiff.

(2.) The defendants Ram Sarup and Sukhdeo, who are brothers owned two shops, one at Mungra Badshahpur in the District of Jaunpur, and the other at Fursatganj in the District of Rai Bareli. The plaintiff alleges that in the year 1920 he was appointed a Munib of the shop at Fursatganj at a certain salary; that in February 1921, the plaintiff became a partner of the firm at Mungra Badshahpur; that the plaintiff owed one Raghunandan Tewari a sum of Rs. 390 under a bond, dated 16 March 1915; that Raghunandan in his turn was indebted to the defendants to the extent of about Secs.700, that Sukhdeo, having sued Raghunandan Tewari in the Rai Bareli Court for recovery of Rs. 700 or thereabout, the claim was compromised on 14 April 1923; that one of the terms of the compromise was that Rs. 390 which was due to Mahabir, be deducted from the claim because Mahabir had executed a bond in favour of Sukhdeo on that very date, that is, the 14 April 1923; but the partnership of Mungra Badshahpur came to an end some time about November 1923, but the account was neither adjusted nor settled and that on 21 November 1923 Sukhdeo instituted a suit against Mahabir for recovery of Rs. 405-6-0 on the mortgage bond dated 14 April 1923 in the Court of the Judge of Small Causes at Rai Bareli, which was numbered as 338 of 1923 and that an ex-parte decree was passed on 11 January 1924. This decree was put into execution and two houses of Mahabir situate in the District of Jaunpur were attached.

(3.) The plaintiff complained that the decree referred to above in suit No. 338 of 1923 was a fraudulent one, that the plaintiff was prevented from defending the suit in the Court of the Judge of Small Causes at Rai Bareli, that the understanding between the parties was that the amount of the bond dated 14 April 1923, was to be realized from the plaintiff's share of the profits in the Mungra Badshahpur firm and from his salary as a Munib; that the bond was put into suit in breach of this understanding; that the plaintiff, on hearing about the institution of the suit, complained to the defendants and the matter was referred to a panchayat. The recommendation of the panchayat was that the defendants should withdraw the suit and pay the plaintiff's costs. The defendants did not act up to the recommendation of the panchayat and the matter was referred to the arbitration of one Prag Ram Teli on 5 January 1924. The latter made an award on 13th October 1924 under which Rs. 560-4-0 were found due to the defendants and certain other persons. An application was made for filing this award on 1st November 1924 and was numbered as original suit No. 549 of 1924.