PANDEY GANJENDRA PRASAD Vs. KAULESWARI KUER

JUDGEMENT

(1.) Two questions have been raised in this appeal. It has been urged that an error of law has been committed by the learned 3rd Additional Sub-ordinate Judge, at Arrah in rejecting a certified copy of a certified copy of a decree in the absence of the original (Ext. K/1) as not admissible in evidence. To my mind learned Sub-ordinate Judge has undoubtedly erred in not admitting the said document in evidence and considering its effect. But, as I shall presently consider, I am satisfied that even after admitting Ext. K/1 in evidence it is not possible to reverse the judgment and decree of the learned Sub-ordinate Judge, on the issues of fact. The second contention raised on behalf of the appellants is whether the suit of the plaintiff respondents for declaration of title and recovery of possession over the disputed house described in Schedule/A of the plaint after adjudicating that it was the separate property of the plaintiff No. 1 whose right, title and interest therein has not been affected by its auction, sale and purchase by the defendant appellants in Execution Case No. 26/64 of the Court of 1st Sub-ordinate Judge, Arrah ; and in the alternative that the said execution case having been levied for satisfaction of decree obtained by the defendant appellants in S.C.G. Suit No. 177/52 of the Court of 1st Sub-ordinate Judge, Arrah in relation to a decree against only of the three co-sharers of the property, is governed by Article 11-A of the Limitation Act, 1908 or by Article 142 of the said Act. I am of the view that Article 11-A of the said Limitation Act in no manner inhibits the reliefs sought in the suit, and Article 142 of the said Act applies to it. I shall consider in some details the said two contentions of the learned Counsel for the Appellants but before I do so, I propose to set out some facts.

(2.) The defendant appellants instituted S.C.C. Suit No. 177/52 in the Court of the 1st Sub-ordinate Judge, Arrah impleading Radhika Raman Prasad Srivastava alias Madan Jee and Mostt. Kamleshwari Kuer and Rewti Raman Prasad, the first two sons of late Gaya Prasad and the third his widow, for recovery of Rs. 490/- (principal and interest) on a hand note dated 26-6-50. At the relevant time Rewti Raman was a minor. The suit, however, was decreed ex-parte. The decree holder, namely, the defendant appellants in the present suit levied execution, being Execution Case No. 26/54. The execution terminated with the auction sale of the disputed house. The defendant appellants auction purchased and obtained delivery of possession of the house on 12-12-1955. The plaintiffs respondents filed an application under Order 21 rule 100 of the Civil Procedure Code (hereinafter to be referred as the Code) for possession of the disputed house in the said execution proceeding alleging that the defendant appellants had wrongly included them in the category of the judgment debtor in the execution case and executed the decree against a property in which they had present possession. The said application under Order 21 rule 100 of the Code was, however, dismissed for default. The plaintiffs thereafter instituted the instant suit. They alleged that the house in question belonged exclusively to the plaintiff No. 1 namely Mostt. Kauleshwari Kuer and so it could not be attached or sold in execution of a decree against Radhika Raman Prasad Srivastava alias Madan Jee (her son) who had no interest in the property. The plaintiffs further alleged that since the decree in the S.C C. suit was against Radhika Raman Prasad alone and he alone was the judgment debtor, therefore, if at all, the execution could proceed against his share in the house and not against the shares to which the plaintiffs were entitled to. They accordingly sought a declaration that the suit house belonged to the plaintiff No. 1 only and no other person had any interest therein or in the alternative that the house being one belonging to Radhika Raman Prasad Srivastava, Rewti Raman and Mostt. Kauleshwari Kuer jointly, their 2/3rd interest could not either be attached or sold in execution of a decree obtained against Radhika Raman Prasad Srivastava.

(3.) Both the courts below have found that the suit house belonged to Rewti Raman, Radhika Raman and Most. Kauleshwari Kuer together each having 1/3rd interest therein. Learned 1st. Addl. Munsif, Arrah, however, found that the decree in the S.C.C. suit was against Radhika Raman as also the plaintiffs and thus the plaintiffs were judgment debtors along with Radhika Raman. He also found that the plaintiffs had filed their suit after expiry of the period of one year, that is to say, the period of limitation prescribed under Article 11-A of the Limitation Act, 1908 and since the suit in question was one governed by the said provision it was barred by limitation. Learned 3rd Additional Sub-ordinate Judge on appeal by the plaintiffs, has, however, found that the decree in the S.C.C. suit was against Radhika Raman only and accordingly the properties belonging to the plaintiffs could neither be attached nor sold in execution of the said decree. On the question of limitation he has taken the view that the suit in question does not fall within the mischief of Article 11-A of the Limitation Act, but, it is one governed by Article 142 of the Limitation Act and accordingly not barred by limitation.