HARI SARAN MOITRA Vs. BHUBANESWARI DEBI

JUDGEMENT

(1.) IN 1870 Uma Soondari Deli, the mother of the Appellant, and daughter and heiress of Raghumoni, who was one of five brothers, sons of Roma Nath Lahiri, forming a joint Hindu family, brought a suit against Bhubaneswari Debi, the widow of Shib Nath, one of the brothers, who had managed the family property, Nilcomul, the son of Koli Mohtm, another brother, and Kanaktara, the widow of Krishnamoni, another brother. These were the only members of the family who were then alive, Ram Mohun, the fifth brother, having died without issue, leaving a widow, who was then also dead. In the suit Uma Soondari claimed to recover possession of her father's share of the family property, which was said in the plaint to consist of land mentioned in schedules Nos. 1 and 2 and pucca buildings and personal properties. Schedule No. 1 contained the lands which the brothers had inherited from their father, and No. 2 the lands which were said to have been acquired whilst the members of the family were living in commensality. On the 13th of December, 1872, the Subordinate Judge of Rungpore made a decree in favour of Uma Soondari in respect of part of the share which she had claimed. Thereupon Bhubaneswari, Uma Soondari, and Nilcomul separately appealed to the High Court, which, on the 22nd of December, 1874, made a decree in the following terms : "It is ordered and decreed that the decree of the Lower Court be varied, and in lieu thereof it is hereby decreed and declared that the Plaintiff is entitled to 3 annas and 4 gundahs share (the share claimed) of all the property which is named and described in the two schedules appended to the plaint." And Uma Soondari having before the suit been put in possession of 2 annas of the property named in and described in the first schedule, it was ordered and decreed that she should recover from the Defendants possession of the remaining 1 anna and 4 gundahs, and possession of 3 annas 4 gundahs of the property named and described in the second schedule. Thereupon Bhubaneswari appealed to Her Majesty in Council, who, by an Order in Council, made on the 20th day of November, 1880, affirmed the decree of the High Court. Whilst the appeals were pending in the High Court, Bhubaneswari adopted a son, Jotindra Mohun Lahiri, but she continued to prosecute her appeal in that Court and appealed to Her Majesty in Council in her own name, taking no notice of the adoption. On the 9th of April, 1881, Uma Soondari having died, the Appellant as her heir made an application to the Court of the Subordinate Judge for execution of the decree. It stated that the enforcement of the decree was sought against Bhubaneswari for self and as guardian on behalf of the minor Jetindra Mohun Lahiri, and against Nilcomul Lahiri, Execution was not sought against Kanaktara, who was said in the judgment of the High Court to have made no defence to the suit. The reason of this may be that she was not in possession of more than her husband's share. On the 12th of April, 1881, the Appellant brought a suit in the same Court for mesne profits, naming as the Defendants Bhubaneswari Debi, for self and as guardian and executor of Jotindra Mohun Lahiri, minor, and Nilcomul Lahiri. The Subordinate Judge, on the 10th of January, 1882, gave judgment in both cases, referring in one judgment to the other where the question appeared to him to be the same. The judgments will, be more conveniently stated hereafter. In the execution case Jotindra Mohun, by his next friend, Rudra Chunder Roy, appealed to the High Court. This person had presented a petition of objection, as next friend of the minor, to the Court of the Subordinate Judge. He was not shewn to have obtained any authority to act as next friend of the minor, and is said to have been a servant of Bhubaneswari. She also appealed, taking the same objections as regards the minor as were taken by the assumed next friend. Nilcomul also appealed, and Sari Saran Moitra, the present Appellant, filed objections by way of cross appeal. In the suit for mesne profits both Bhubaneswari and Nilcomul separately appealed.

(2.) ON the 9th of June, 1884, the High Court gave judgment in the suit for mesne profits, and on the 10th in the execution case, and the present appeal is from the orders or decrees made upon those judgments.

(3.) ON the same question the High Court said: The present appeal arises out of proceedings taken to execute the decree in the title suit passed by the High Court, and confirmed on appeal by the Privy Council. It is contended that that decree cannot be executed against the minor Jotindra Mohun Lahiri, because he was not a party to it, and those steps which, according to law, might have been taken to make him a party were not taken. Section 372 of the Code of Civil Procedure provides for making the assignee or other transferee of the interest of a Defendant a party to the suit when the assignment or transfer has been made during the pendency of the suit. No action was taken under this section. It has been urged that the devolution of the Defendant's interest upon the adopted son by reason of the adoption was not known to the decree-holder, and that therefore he could not take the necessary steps to make the minor a Defendant. This may be so, but upon this point we pronounce no opinion. We further pronounce no opinion upon the question whether the minor is bound by the decree in the title suit. All we decide on the present occasion is that the decree cannot be executed against the minor because he is not a party judgment debtor upon the record.