- (1.) THIS appeal arises out of a suit Under Order 21, Rule 63, Civil P.C., 1908, filed by respondent 1 Goverdhandas on 2-11-1934, in the Court of the First Subordinate Judge, Second Class, Harda, for a declaration that he was the owner of the house at Harda, which had been attached by the appellant, the firm of Nainsukhdas Sheonarayan of Bombay, in execution of a decree dated 25-7-1932 in Civil Suit No. 1033 of 1930 of the Bombay High Court, and that a 2/3rd share of the house was not liable to attachment and sale in execution of that decree.
(2.) IN order to understand the points involved in this appeal it is necessary to set out briefly a few relevant facts. The respondents are related. Respondent 2 Ballabhdas is the father of respondents 3 and 4, Vithaldas and Bindrabandas. Respondent 1 Goverdhandas is the son of Ballabhdas's sister and the first cousin of Vithaldas and Bindrabandas. Ballabhdas and his sons carried on business in the name of the firm of Ramchandra Ballabhdas at Harda and at Bhopal. They were indebted to a number of persons among whom was the Imperial Bank of India, Bhopal Branch. The bank filed a suit on 20-11-1929 in the High Court at Bhopal against the firm of Ramchandra Ballabhdas for Rs. 30,430-15-0 and obtained a decree on 7-5 1930 for that sum with interest at bank rate from 22-10-1929 till realisation; the decretal amount was payable in two instalments, the first instalment of Rs. 15,200 on 15-11-1930, and the balance together with costs on 15-5-1931. In the copy of the decree (EX. D-2) and the order-sheet (EX. P-19) the suit is described as filed against Mr. Ramchand Ballabhdas, but it appears from the pleading in the present case that the suit was against the firm of Ramchandra Ballabhdas and that the respondents Ballabhdas and his sons were liable for the decretal amount: vide para. 6 (a) of the written statement of defendant 1, dated 12-7-1935 and of the plaintiff's written rejoinder dated 16-7-1936. Ballabhdas (P.W. 14) in his evidence stated that his sons were sureties for the debts due to the Imperial Bank and that their property was also sold for the satisfaction of the decree of the Imperial Bank. Bindrabandas (P.W. 13) stated that he paid money to the Imperial Bank in execution because he was a surety for his father. The appellant, the firm of Nainsukhdas Sheo Narayan of Bombay, filed civil Suit No. 1033/1930 in the High Court at Bombay on 15-5-1930 against Ballabhdas and his two sons and obtained a decree on 25-7-1932 for Rs. 11,288-15-0 with interest at 6 p. c. p. a. from the date of the decree till realisation (EX. D-3).
(3.) ONE Gopaldas filed a suit in the Bhopal High Court on 16-11-1931 against Ballabhdas and his sons for dissolution of partnership, for rendition of accounts and for a decree for what might be found due on such account. A preliminary decree was passed on 18-3-1933. A copy of the judgment is Ex. D.1. A final decree (Ex. D-4) was passed against the defendant on 29-7-1935 for one lac of rupees and a charge was created on the joint family property which was in the possession of Ballabhdas as manager of the joint Hindu family before an alleged partition on 19-10-1929 which was declared null and void as against the plaintiff. Vithaldas and Bindrabandas were however not made personally liable for the decretal amount. Ballabhdas and his sons were also indebted to one Kesrimal to the extent of Rs. 4000. This was admitted by Vithaldas (P.W. 11) in his evidence.;