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1954 DIGILAW 61 (ORI)

MADAN SAHU v. SUNAKAR NAIK

1954-08-18

R.L.NARASIMHAM

body1954
JUDGMENT : Narasimham, J. - This is an appeal against the concurrent decisions of the two lower Courts dismissing an objection u/s 47 CPC by the judgment-debtors against the execution of a money decree dated 22-6-45 obtained against them. 2. One Hadu Sahu, his brother Nila Sahu and their nephew (brother's son) Gopi Sahu were originally members of a Hindu joint family with Hadu as the Karta of the family. Hadu executed a hand-note as Karta of the family and on the basis of that the decree-holder (Respondent) obtained an exparte money decree on 22-6-45 against Hadu, Nila and Gopi. The decree-holder started the first execution proceeding sometime in 1946 but it was dismissed as infructuous on 17-12-46. The present execution under challenge was filed by him on 10-5-52, more than three years after the dismiss of the previous execution petition. Limitation was sought to be saved by an alleged part payment of Rs. 50/- towards the decretal dues said to have been made by Hadu as Karta of the family on 19-6-49 and an acknowledgment of such payment (Ext. 1) on the copy of the decree. Hadu is now dead and is represented by his two sons, Madan and Mani. 3. The main objection was on the ground of limitation. It was first urged that the payment of Rs. 50/- by Hadu was not made as Karta of the family and that the joint family had separated prior to the alleged date of payment. But the findings of both the Courts are that the family was joint till 19-6-49, that Hadu was the Karta and that the payment of Rs. 50/- was made by him as Karta. This is a pure finding of fact. 4. The main legal objection is, however, that when the decree-holder obtained a decree against all the co-parceners of the joint family, payment made by a managing member alone would not save limitation and that Section 21(3)(b) of the Indian Limitation Act would not apply to the facts of this case. In support of this argument reliance was placed on Prahlad Das Vs. Dasarathi Satpathi and Others Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, and Deo narain Singh and Others Vs. In support of this argument reliance was placed on Prahlad Das Vs. Dasarathi Satpathi and Others Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, and Deo narain Singh and Others Vs. Bibi Khatoon and Others, in which it was held that where a decree that is sought to be executed was obtained against all the members of a Hindu joint family including the Karta the execution proceeding must continue against all of them and the Karta alone cannot represent the family in that proceeding. 5. Mr. Misra on behalf of the Appellants, however, fairly conceded that the aforesaid decisions are not decisions regarding the applicability of Section 21(3)(b) of the Indian Limitation Act but he urged that the principles laid down therein were of wider import and would apply to the present case. Thus, in Prahlad Das Vs. Dasarathi Satpathi and Others, a decree was obtained against a Hindu father and his sons. The learned Judges held that as the sons were made parties to the suit the father could not be said to have represented them either in the suit or in the execution proceeding. Similarly, in AIR 1941 Mad 440 it was pointed out that where a decree was obtained against a Hindu father and his sons the question of pious obligation of the sons to discharge the debt of the father not tainted with immorality or illegality did not arise and the only mode of enforcing such a claim was by executing the decree against all of them. It was further pointed out "The matter is no longer governed by the Hindu Law but by the relevant provisions of the Code of Civil Procedure". Similarly, in Deo narain Singh and Others Vs. Bibi Khatoon and Others, the question for consideration was whether a decree obtained against all the co-parceners of a joint family could be executed against the Karta and some members of the family alone leaving out the rest. It was held that inasmuch as the decree was obtained against all the co-parceners the question of the father representing his sons and grandsons did riot arise. 6. It was held that inasmuch as the decree was obtained against all the co-parceners the question of the father representing his sons and grandsons did riot arise. 6. As pointed out in AIR 1941 Mad 440 , in all the aforesaid decisions the main question for consideration was not any question of Hindu Law but whether under the provisions of the CPC a decree against several members jointly can be executed against some of the judgment-debtors only. These decisions, therefore, have no direct bearing on the question at issue in the present case. It may be that for the purposes of the CPC when a decree is obtained against the Karta and other members of the family, the Karta cannot be said to represent the entire family in the execution proceeding even though the original liability out of which the decree arose was a joint family liability. 7. But in considering whether an acknowledgment of debt by a Karta saves limitation, the provisions of Sections 20 and 21 of the Indian Limitation Act alone need be considered. Sub-section (1) of section 20 says that where payment on account of a debt is made before the expiry of the prescribed period by a person liable to pay the debt or by his duly authorised agent a fresh period of limitation shall be computed from the time when the payment was made. The Explanation to that section was specially inserted so as to clarify the position that 'debt' included money payable under a decree. Hence, in the present case the decree obtained against the judgment debtors would also be a 'debt' for the purpose of Section 20 of the Limitation Act, Clause (b) of Sub-section (3) of Section 21 says that for the purpose of Section 20 "where a liability has been incurred by or on behalf of a Hindu family as such an acknowledgment or payment made by the manager of the family for the time being shall be deemed to have been made on behalf of the whole family", Here, on the findings of both the Courts the decretal debt was incurred on behalf of the undivided Hindu family even though all the members of the family were impleaded as parties in the suit. It is also found that when payment was made, Hadu was the manager of the family. It is also found that when payment was made, Hadu was the manager of the family. Hence, in terms the said clause would apply and limitation would be saved. 8. There is also sufficient authority for this view, In Ragghi v. Nathu Lal it was held that where a mortgage decree was passed against a Hindu father and his sons, payment made by the father as manager of the family towards interest on the decree would save limitation u/s 21(3)(b) of the Indian Limitation Act. Again, in Banchanidhi Kar v. Ude kar and Ors. where a joint decree was passed against four brothers who were all members of a joint family, payment made by one of the brothers as manager of the family was held to save limitation. 9. I would therefore, agree with the lower Courts on the question of limitation. 10. The appeal is, therefore, dismissed with costs. Final Result : Dismissed