HIRA LAL Vs. RAM PHER

JUDGEMENT

(1.) This is the defendants second appeal against the judgment and decree of Mr. Kali Charan Agarwal, Civil Judge, Partabgarh.

(2.) The plaintiff respondents Ram Pher and Ram Adhar filed a suit for recovery of Rs. 35, the price of crops, and Rs. 5 interest thereon, against the appellants Hira Lal and Nageshar. It would appear that Hira Lal appellant had obtained a decree from the Small Cause Court against Ram Pher respondent and in execution of that decree the arhar crop of plots Nos. 111/1 and 113/l situated in village Rupapur was attached. Nageshar appellant was appointed supurdar. He furnished a surety bond also. Ram Adhar, plaintiff-respondent, is the own brother of Ram Pher, and he made an objection to the attachment on the ground that the crop belonged jointly to himself and his brother. This objection was allowed and the attachment was withdrawn in respect of the whole crop. In spite of the order of release, the supurdar Nageshar did not return the property to the plaintiff-respondents. Accordingly the suit was filed for recovery of the price of the crop. In the trial Court objection was taken to the suit on the ground that it ought to have been filed in the Court of Small Causes. The question of limitation was raised and the price of the crop was also disputed. The trial Court held that it had jurisdiction and that the suit was within time and the plaintiffs were entitled to a decree for Rs. 21 against both the defendant-appellants. The defendant-appellants went up in appeal and the question of jurisdiction was not pressed, but the question of limitation was pressed. The appellate Court decided against the appellants and the appeal was dismissed.

(3.) One of the points urged in second appeal is that the Courts had no jurisdiction to entertain the suit and instead of a suit an application should have been given to the executing Court, that is, the Court of Small Causes, for recovery of the price of the crop. It is contended that 145, Civil P.C., read with Section 47, Civil P.C., is applicable inasmuch as Nageshar supurdar was a surety. This contention has no force. Under Section 145, Civil P.C., the surety is a party for the purposes of proceedings covered by Section 47, Civil P.C., and Section 47 applies only to parties to the suit in which the decree was passed or their representatives. Now, admittedly, the two plaintiffs who owned the attached property jointly were not parties to the suit in which the decree had been passed against Ram Pher only. These persons must therefore be deemed to be strangers to the litigation in which the decree was passed and in these circumstances the bar created by Section 47, Civil P.C., will not arise and the suit of the plaintiffs for the relief they sought was not barred. The suit was rightly entertained in the trial Court.