UMAKANT RAI Vs. JITENDRA NARAIN

JUDGEMENT

(1.) This appeal is directed against the orders of the learned Subordinate Judge of Darbhanga, dated 28 October 1914, passed in a proceeding to set aside a sale, under Section 47 and Rule 90 of Order 81, Civil P.C.

(2.) It is necessary to state in some detail the facts of the case leading up to this appeal. It appears that one Bharat Narain Rai died in or about the year 1934, leaving him surviving his son, Jogendra Narain, his other son, Prithibindra, having predeceased him. Jogendra has a son, Umakant, who is the appellant in this case. In 1989, the son of Prithibindra aforesaid, a minor under the guardianship of his mother, instituted a suit for partition, impleading Jogendra as defendant l, his minor son as defendant 2, and Mt. Parbati, widow of Bharat Narain, as defendant 3. It is not necessary to state the other parties to the suit. Umakant, the minor defendant 2, was represented by a pleader guardian ad litem in the action, and not by his father, defendant 1. The suit was contested by defendant 1 alone, though formal written statements were filed by other defendants also. The chief ground of defence, inter alia, was that this suit for partition was not in the interest of the minor plaintiff, and that some enemy of the family had instigated the institution of the suit in order to ruin the family, particularly the interest of the minor plaintiff. During the pendency of the suit, the Court directed defendant l, who was apparently the karta of the joint family and in possession of the joint family funds, to make certain payments to the minor's mother on account of maintenance and, presumably, to meet the costs of the litigation. The amount thus directed to be paid by defendant 1 was not paid by him to the minor's mother, with the result that the order of the Court was executed as a decree, and one anna fifteen gandas odd in tauzi No. 16768, which belonged entirely to the joint family aforesaid, was put up to sale, and purchased by the decree-holder himself. Ultimately, the suit itself was decreed in respect of the plaintiff's one-third share. As regards costs, the direction of the Court was that the plaintiff would recover the same from defendant 1. This decree for costs against defendant 1 was put into execution in Execution case No. 17 of 1941. In the application for execution, all the defendants to the suit were, in ordinary course, named as the judgment-debtors, but, in column 9 meant for showing the name of the person against whom the decree was to be executed, defendant 1 was named. Defendant l's branch had a one-third share in the estate, tauzi No. 16768, and that one-third share minus the 1 anna IS gandas, already sold as aforesaid, was put to sale and purchased by the decree-holder himself on 8 July 1941. On 21 August 1943, an application under Section 47 and Rule 90 of Order 21, Civil P.C. was filed by Jogendra Narayan, defendant 1, as also on behalf of Umakant, the minor son of Jogendra Narain under the guardianship of his father. Jogendra Narain died during the pendency of this proceeding for setting aside the sale, and the minor Umakant was then placed under the guardianship of his mother. The sale was attacked on a number of grounds, of which it is only necessary to mention two: (1) that the entire execution proceedings had been vitiated by fraudulent suppression of processes, and (2) that in any case the 8 annas interest of the minor defendant 2, namely, 2 annas 13 gandas odd, could not be affected by the sale, as he was not the judgment-debtor against whom the decree for costs could have been executed.

(3.) This application was contested by the decree-holder auction purchaser who alleged that the processes had all been duly served, and that defendant 2, the minor, who is the appellant in this Court, was also liable to pay the decree for costs, Sis it was his pious obligation to pay his father's debts. As against the last contention of the judgment-debtor, it was contended on behalf of the applicant that, the decree for costs haviag been occasioned by the improvident act of the father in so far as he contested the suit in which no defence was apparently open, the debt was an avyavaharik debt.