NATHUNI PRASAD Vs. FIRM RADHA KISHUN DUTT RAI

JUDGEMENT

(1.) This appeal arises out of an execution proceeding. The decree under execution which is a money decree was obtained by the respondent on 12 December 1925, in the Munsif's Court at Benares against a firm named Ajodhyaram Nandji. This firm, according to the decree-holder, was a joint Hindu family firm consisting of Nandji and his sons and nephew: the nephew has since died leaving a widow. In the suit Nandji was the only person who was served with the summons. The decree-holder got the decree transferred to the Munsif's Court at Siwan and presented in that Court an application for execution on 6 February 1926, which was registered as execution case No. 36 of 1926. This execution was directed against the firm. On 24 April 1926, Nandji filed an application for insolvency; on the same day he made an application in the execution case praying for stay of further proceedings till the disposal of the insolvency case.

(2.) The prayer was allowed by order dated 3 May 1926. It appears however that no injunction was passed in the insolvency case staying the execution. Nandji was adjudicated an insolvent on 25 May 1926. The execution case was ultimately struck off on 31 January 1927, as neither party took any steps. The insolvency case was finally disposed of on 3 February 1936, when Nandji was granted discharge. In the course of the insolvency proceedings the decree-holder proved his debt and made attempts to realize it by sale of the joint family properties of Nandji and his sons and nephew.

(3.) He succeeded in selling the interest of Nandji alone in those properties as the sons and nephew of the latter took the objection that their interest could not be sold by the receiver. This objection was accepted by the Court by its final order, dated 3 February 1936. The decree-holder thereafter filed the present application for execution on 23 December 1937, for recovery of the decretal amount less what was realized by sale of Nandji's share in the insolvency proceedings. In the application in the column of judgment-debtors are mentioned, besides Nandji, his four sons and three widows of the family, one of whom is the brother's widow of Nandji. The four sons of Nandji and his brother's widow came up with objections under Section 47, Civil P.C., alleging that they were not judgment-debtors under the decree sought to be executed, that the execution was barred by limitation and that they were not liable for the debt of Nandji.