GIRDHAR LAL Vs. ALAY HASAN MUSANNA

JUDGEMENT

(1.) The following questions of law have been referred for decision to this Full Bench: (1) Can a simple money decree with regard to the amount of compensation money received from the treasury by the appellants be passed in favour of the respondent under the circumstances of the present case? (2) What is the period of limitation for the passing of such a personal decree and when does the cause of action for the same arise?

(2.) The circumstances referred to in question (1) are as follows : On 17th February 1915, two persons named Ganeshi Lal and B. Ram Chand, who were members of a joint Hindu family, executed a deed of simple mortgage for a sum of Rs. 8500 in favour of Syed Alay Hasan plaintiff-respondent. The stipulated period for payment of the mortgage money was five years and the cause of action for the recovery of the mortgage debt, therefore, arose on 17 February 1920. The suit giving rise to the present appeal was instituted a day before the expiry of 12 years from the date of the accrual of the cause of action, viz., on 16 February 1932. In the year 1917 partition was effected between Ganeshi Lal and Ram Chand by means of an arbitration award and the mortgaged property was allotted to the share of Ganeshi Lal. Ganeshi Lal is dead and his legal representatives are defendants 1 to 5. Ram Chand is also dead and his legal representatives were impleaded as pro forma defendants in the suit, but we are not concerned with them as they, after the partition, had no interest left in the mortgaged property. In the year 1928 the Government acquired 2692 acres of land out of the mortgaged property and a sum of Rs. 2,193 was awarded as compensation to defendants 1 to 5, This compensation money was withdrawn by defendants 1 and 2 (defendants 3 to 5 being then minors) either in the year 1927 or in the year 1928. The exact date on which the compensation money was withdrawn is immaterial for the decision of the questions referred to above. On the date of the suit amount due to Alay Hasan plaintiff-respondent on the basis of the mortgage was a sum in excess of Rs. 22,000 but he sought a decree only for a sum of Rs. 18,500. The relief prayed for by him was as follows: Defendants 1 to S may be ordered to pay Rs. 18,600 together with pendente lite and future interest to the plaintiff within the time to be fixed by the Court, otherwise the property detailed below may be sold by auction, and out of RS. 18,600 the amount of suit Rs. 2076, the amount of compensation realized by defendants 1 to 5 together with the pendente lite and future interest may also be awarded by passing a personal decree against the said defendants.

(3.) It would be noted that over and above a decree for sale, the plaintiff claimed a simple money decree for the compensation money against defendants 1 to 5 and it is this prayer of the plaintiff that has given rise to the two questions of law mentioned above. The compensation money withdrawn by defendants 1 and 2 amounted to Rs. 2193 and it appears that by some oversight the plaintiff claimed a simple money decree only for a sum of Rs. 2075. Defendants 1 to 5 contested the suit inter alia on the ground that the plaintiff was not entitled to a personal decree for the amount of compensation realized by defendants 1 and 2 and that the suit was barred by limitation. We are not concerned with the remaining pleas urged in defence. The trial Court observed in the course of its judgment that the point of limitation was not pressed and accordingly it was not necessary to decide the issue relating to limitation. It overruled the other pleas urged in defence and passed a simple money decree for the amount of compensation against defendants 1 and 2 who had withdrawn the same. It further passed a decree for sale under Order 34, Rule 4, Civil P.C., against defendants 1 to 5 for the mortgage money minus the amounts of compensation with respect to which a simple money decree was passed against defendants 1 and 2.