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72



YII]



RAMPHUL TIWARI V. BADRI NATH



13 All 118



prescribed to persons under disability. Where such enlargements have
been intended they are found in the Acts containing the limitation as in
the general Act. This Act contains no such saving, and their Lordships
would be legislating and not interpreting the statute if they were to
introduce it.

" It wasjsaid that the clauses in the general Statute, Act XIV of 1859,
relating to disabilities might be imported into this Act, but this cannot
properly be done. Act XIV is a code of limitation of general application.
This Act is of a special kind, and does not admit of those enactments
being annexed to it. It is to be ob-[117]served that, if it could be done,
it would not assist the appellants because the limitation of Act IX is one
year only, and the saving in favour of minors in s. 11 of Act XIV would
not bring them within time, as a year elapsed after they came of age before
the bringing of the present suit.

" One other objection requires to be noticed, that this Act was not
retrospective. Undoubtedly Mr. Doyne was able to suggest cases in which
hardship might arise to persons who would not have a full year to claim
before they would be barred under the provisions of this Act, or even where
the year might have elapsed between the date of the confiscation and
passing of the Act. Although bard cases may arise, their Lordships consider
that the Act is plainly retrospective in its operation, and includes claims to
forfeited property which had been confiscated previously to its passing.

" Their Lordships are of opinion that the judgment of the High Court
is right, and they must humbly advise Her Majesty to affirm it."

Reverting to the present case, I observe that Sheogobind Ghand and
Lalbehari Chand were zemindars of a ten annas share in mauza Sukurdeha
and lambardars of the whole villaee, and they took illegal possession of
the remaining six annas share that had been purchased at public auction
by Ganesh Prasad. His widow, Musammafc Gangan Kuari, alone sued them
for possession, and in 1854 she obtained a decree. In 1855 she also dealt
with the share as if she were the sole and absolute owner of it, for she sold
it with all its rights and interests to Sheogobiud Chand and Lalbehari
Chand.

The plaintiff Badri Nath was separated in estate from his brother
Ganesh Prasad, but he had a reversionary interest in the six annas share left
by Ganesh Prasad, and when his brother's widow made an absolute sale of
the share to Sheogobind Chand and Lalbehari Chand, he might haveinstitut-
ed against the vendor and vendees a suit, such as is now constantly brought
in our Courts, to have the absolute sale declared to be void. He preferred
no claim at all until 1886, and a suit of the description above referred [118]
to has been barred for the last twenty years or more. In 1858 the pur-
chasers of the six annas share became rebels, and consequently their
estates, including the entire sixteen annas share of mauza Sukurdeha,
were confiscated by the Government, and that village and other villages
were granted to the defendants-appellants in compensation of losses they
bad sustained at the hands of the rebels, other estates having been award-
ed to them in reward of their loyal services. These are facts that are
admitted by the plaintiff-respondent.

Judging from the deed of sale of 1855, neither Ganesh Prasad nor his
widow, Gangan Kuari, was ever in possession of the six annas share in
Sukurdeha ; but even if that was not the case Sheogobind Chand and
Lalbehari Chand had the whole sixteen annas share of Sukurdeha in their
possession and under their control from the 25ch October 1855, the date of



1888

AUG. 13.

APPEL-
LATE
CIVIL.

13 ft. 108.



A VII 10



73



13 All, 119 INDIAN DECISIONS, NEW SERIES [Yol.

1888 the sale, and the whole village was seized and confiscated by the Govern-
AUQ. 13. ment as a part of their estates on their becoming rebels in 1858.

At the time the village was confiscated by the Government Musammat

APPEL- Gangan Kuari had for nearly three years past ceased to have any interest

LATE whatever in mauza Sukurdeha. If Badri Nath considered that he had a

CIVIL, right to the six annas share be should, when he saw the whole village

confiscated by the Government and granted to the defendants-appellants,

13 A. 108. have immediately preferred his claim to the share in Court, as any person

of ordinary intelligence and prudence would have done. Had be thus

acted, bis claim would have been adjudicated upon, and possibly he

might have obtained a decree which would, on his sister in-law's death,

have given him possession of the share. He, however, omitted to have

recourse to a procedure that be obviously should have adopted, and his

claim is now, in my opinion, undoubtedly barred by s. 20 of Act IX of

1859, as explained by their Lordships of the Privy Council.

Badri Nath is not entitled to any sympathy. In 1854 when litiga-
tion about the share was going on between his sister-in-law and Sheogo-
bind Chand and Lalbehari Chand, in 1855 when his [119] sister-
in-law sold the property with all its rights and interests to the same two
persons, in 1858 when Sheogobind and Lalbehari who were in proprietary
possession of the whole of Sukurdeha, including the share in suit, were
convicted of rebellion and the village was confiscated by the Government
and was granted to the defendants, on all these occasions Badri Nath
stood by and took no action whatever to assert his claims. He did nob
sue for possession when his sister-in-law died in 1874, and he did not
bring this suit until the 6th March 1886, that is, only two or three days
before the expiration of a period of twelve years from the ceath of Gan-
gan Kuari and of about twenty-eight years, thirty-one years and thirty-
two years respectively from the confiscation and grant, Irom the sale and
from the decree above referred to. Apparently for thirty years or more
he had no intention of preferring a claim for the share, and probably he
was induced by some speculation or other to institute a suit when the
period of twelve years from his sister-in-law's death was just about to
close.

I would allow the appeal, reverse the decrees of the lower Courts and
dismiss the suit with all costs.

STRAIGHT, J. I am of the same opinion. Appeal allowed.



13 A. 119 = 11 A. W.N. (1891) 16. ,, ! '-

APPELLATE CIVIL.
Before Mr. Justice Straight and Mr. Justice Tyrrell.



HAEGU LAL SINGH (Defendants) v. MUHAMMAD RAZA KHAN
AND ANOTHER (Plaintiffs) *. [9th December, 1890.]

Execution of decree Attachment Incorrect description of property sought to l>e attached
Subs quent purchase of same property under a deciee for pre-emption Civil
Procedure Code, s. ii74.

ID execution of a simple money decree against the holders of a muafi interest
in a certain village, who did not possess any zamindari interest in that village,
an attachment was obtained by the decree-holder in '884 ot " an eight biswas
zemindari share of mauza D" and under that attachment a sale tor k place in

* First Appeal, No. 194 of 1888, from a decree of Maulvi Zain-ul-Abdin, Subordinate
Judge of Moradabad, dated the 26th June 1888.

74



YII] HARGD LAL SINGH V. MUHAMMAD BAZA KHAN 13 All, 121

January 1886. Meanwhile, in December 1685, a decree for pre-emption in respect 1890

of a sale by the judgment debtors in 1881 of their muafi interests in the village,

was decreed in favour of persons who were not parties to the litigation in which

the attachment of 1884 was [120] effected. The plaintiffs (who were in posses- ~

sion) sued (or a declaration of their right to the muafi interests as against the APPEL-

auotion-purchaser under the sale of January 1886. LATE

Eeld that the attachment in 1864 was not a good attachment of the Muafi ClVIL.

interests of the judgment -debtors, and tha auction-purchaser could not be held to

have purchased those Muafi interests, and the title of the plaintiffs under their 13 A. 119
pre-emptive decree of December 1885 must prevail. 11 A W N

THIS was a suit for a declaration of the plaintiffs' right to certain (189J ) 16
property under a decree for pre-emption passed on the 21st December
1885, as against the defendant, who had obtained " formal possession "
only of the same property under a sale in execution of a simple money
decree, the sale having taken place on the 20th January 1886. The
plaintiffs were in actual possession. The material facts of the case are
stated in the judgment of Straight, J.

Babu Jogmdro Nath Ghaudhri for the appellant.

Mr. Abdul Majid and Maulvi Zahur Hussain, for the respondents.

JUDGMENT.

STRAIGHT, J. I am of opinion that the Subordinate Judge has
rightly decided this suit in favour of the plaintiffs. The question between
them and the defendant is a very simple one, and appears, from the
following short faots which I may conveniently state.

On the 18bh December 1880, one Imdad Huaain obtained a money
decree for a small sum against Bedar Shah. Badar Shah was the father
of Mahmud Snah, Firoz Sftah, Timur Shah an i Maksud Sbah. Imdad
Hussain sold his decree to two persons named Behari Lil and Makund
Bam. On the 5th June 1881, Mahmud Shah and his two brothers
executed a sale-deed of their mU'ifi interests in Mauza, Dhak Sahid,
pargana Sambhal, in favour of one Mozaffar Ali for a sum of Bs. 6,500.
The present plaintiffs, such sale having come to their kno ledge, institut-
ed a pre-emption suit, and upon the 21st December 1885, obtained a
decree upon payment to the vendee-defendant of the sum of Bs. 5,580.
Even if the title of the plaintiffs to the muafi interests of Mabmud Shah
and two of his brothers therefore cannot be thrown back to an earlier date,
they became by their pre-emptive decree the proprietors of that interest
from the 21st December 1885. On the 20th January [121] 1886, Makund
Bam and Behari Lai brought; to sale the interests of Mahmud Shah and
his two brothers in mauza Dhak Sbahid, and the defendant purchased for
a sum of Bs. 225. Upon the strength of that purchase he invoked the
aid of the Civil Court executing that decree to give him possession, and
formal possession was given him. In addition to that he obtained from
the Bevenue Court an order entering his name in lieu of Mahmud
Shah and his two brothers in the revenue records. This is the cause of
action for the institution of the present suit, and it is admitted that the
plaintiffs are in actual possession and enjoyment under the title acquired by
them upon the strength of their pre-emption decree. At first sight upon the
statement of the facts, it would appear to be conclusively clear that the
plaintiffs have a title, dated not later, at any rate, than the 21st December
1885, to the whole of the property of Mahmud Snah and his two brothers.
That fcitle must have a superior claim over and above that of the defendant,
which was not acquired until the 20th January 1886. But Mr. Jogindro
Nath, on behalf of the defendant-appellant, has ingeniously and ably

75



13 All. 122



INDIAN DECISIONS, NEW SERIES



[Yol.



1890 argued that as an attachment was put upon the interest of Mahmud Shah
DEC. 9. aod his two brothers at the instance of Makund Bam and Bahari Lil on

! the llbh May 1884, and as the execution sale of the 20 -h January 1886,

APPEL- took place under that attachment, his title, so far as resisting the title of

LATE the plaintiffs is concerned, relates back to the date of his attachment

CIVIL, order, or at least that the attachment of the llbh May 1884, was a

prohibition to the sale by the judgment-debtors of their interests to

13 A. 119= Mozaffar AH upon the 5th June 1884.

11 A.W.N, The question in my judgment before us, and before the learned

(1891) 16. Subordinate Judge below, therefore, fines down to this, was a good attach-
ment of the muafi rights of Mahmud Shah and his two brothers put uoon
those rights on the llth May 1884 ? I have asked Mr. Jogindro Nath to
point out to me any other document bayond that numbered 21 and
to ba found at page 11 of the respondents' book, bearing upon the
attachment. He was unable to do so, and indeed, with the exception
of one other that we ourselves have discovered, and which is to be
found at page 14 of the same [122] book, there is no other documentary
evidence in this record to throw light upon the circumstances and the
character of the attachment. There is, however, the oral evidence of
a witness Bhola Nath, who was pleader for the decree- holders, who
effected that attachment. He informs us to a certain extent as to what
happened at the time it was made, and what he says does not help
the defendant. Now taking the document at page 14, which bears date
the 22nd April 1884, that appears to be an attachment issued in oursu-
ance of s. 273 (s. 274 it ought to be) of the Civil Procedure Code,
and the attached property is there described as the 8 biswas "zammdari"
share of mauza Dhak Shahid, bearing a jama of Rs. 60, the property of
the defendants. Document No. 21, at page 11, is a list of the property of
Mahmud Shah and others, judgment-debtors, to ba attached in the case of
execution of decree of Behari Lai and Makund Ram and others, plaintiffs,
against Mahumd Shah and others, judgment-debtors, situate in mauza
Dhak Shahid, pargana Shambhal, dated the llth May 1884. This,
although professing to be a list, is in reality a document showing that
an 8 biswas " zamindari " in mauza Dhak Shahid, bearing a revenue of
Ra. 60 and belonging to the defendants, was attached, and that document is
signed by the Amin, who did effect the attachment, and by the Munsif of
the Court who had ordered that attachment to take place. Ib is perfectly
clear to my mind that in both these documents, viz., the formal orders
under s 274 of the Civil Procedure Code, and the report of what had beeu
attached, what the decree-holder was attaching and hid attachei was an
8 biswas "zamindari" share of his judgment-debtors in the particular mauza,
which zamindari share was stated as liable to a revenue of Rs. 60 a year.
Mr. Jogindro Nath for the appellant very frankly and rightly has
admitted that Mahmud Shah and his brothers had no zamindari interests
in Dhak Shahid at the time of this attachment, but that the interest they
had was a muiftdir's, which would necessarily ba of very considerably
greater value than a mere zamindari interest, such as that which was in
fact attached.

[123] Not only have we the contents of these two documenos, but
again reverting to the deposition of Bhola Na^h, who was the oleader
acting on behalf of the decree-holders, Makund Ram and Bahari Lai, he
said

" It did not aopear to me from 'ihe khewat whether the property was
zamindari or muafi, and therefore I described it to be zamindari property

76



YII] HARGU LAL SINGH V. MUHAMMAD BAZA KHAN 13 All.

in the application. The khewat did not show that it was znmindari. I had 1890
stated it to be zamindari according to my judgment. With reference to DEC. 9.

the word malguzari mentioned in the I2ch column of the copy of the

khe-ioat, I had conbidered it to be zamindari. I don't remember whether APPEL-
tbe Collector inquired of the Munsif that that property did nobs' and in the LATE
names of the judgment-debtors, but in that of Mozaffar Ali Khan. I don't QlVlL
remember wbe 1 . her any objection was taken. This case was transferred
to the Collector and the sale was made by him." To the plaintiff's 13 i. 119=
pleader : " I got the property of the defendants attached considering it u x w
to be zamindari. I considered that property to be zamindari, and got the
zamindari attached."

There can be no question that what was intended to be attached was
the zamindari interest of the judgment-debtors, and what was attached
was that zamindari interest. For the purposes of disposing of this appeal
I do not think it necessary to go further and deal at length with what
was in fact sold, though the proclamation of sale and the actual sale cer-
tificate, which is the document of title, leave no doubt in my mind that
what was actually sold was the zamindari interest of Mahmud Shah and
bis two brothers, and what the certificate of the sale gave a title to was a
zamindari interest.

The contention for the appellant comes to this, that where an
attachment has been made of a judgment-debtor's zamindari interest and
a sale has taken place in pursuance of that attachment and a certificate
of sale granted for the zamindari interest, though the judgment-debtors
possess no zamindari interest but a muafi interest, yet the auction-pur-
chaser must be taken to have purchased a muafi interest. It would be a
very strong thing to hold any such [124] view. It must be remembered
that we are dealing with parties as plaintiffs, who had no share in the
litigation under which the attachment was put upon the interests of the
judgment- debtors in that matter. They are third parties wholly outside
that litigation, who obtained a clean title upon the 1st December 1885,
unless the attachment of llth May 1884, can be maintained. I think that
they are entitled to put the defendant upon strict proof that the attach-
ment under which the sale to him took place was a good attachment in
law, and that there was no such misdesci ipfcion in it of the interests of the
judgment-debtors as would mislead either purchasers at the auction to bid
or persons interested in the property to refrain from coming forward and
making any claim. For these reasons I think that the Subordinate Judge
was right. I dismiss the appeal with costs.
TYKRELL, J. I concur.

Appeal dismissed.



77



13 All. 125 INDIAN DECISIONS, NEW SERIES * [Vol.

1890 13 A 124 = 11 A. W.N, (1891) 32.

DEC. is, APPELLATE CIVIL.

APPEL- Before, Mr. Justice Straight and Mr, Justice Tyrrell.



LATE

CIVIL. KALLU EAI AND OTHERS (Judgment -debtors) v. FAHIMAN AND OTHERS
(Decree-holders)* [18th December, 1890.]

11 A W N QivM Procedure Co^e, s. 206 Application to bring decree into conformity with tlie
' judgment Execution of decree Limitation Act XV of 1877, sch. ii, art. 179 (4)-

(1891) 32, " Step-in-aid of execution."

The granting of an application under s. 206 of the Civil Procedure Code to
bring a decree into conformity with the judgment does not form the starting point
of a fresh period of limitation in favour of the deoree-holdf r ; nor is such an appli-
cation a "step-in-aid of execution" within the meaning of art. 179, schedule iiof
the Limitation Ant (XV of 1877 .

Kishen Sahai v. The Ccllector of AUahabai (1) distinguished.

[F., 20 A. 304 (306) = 18 A. W.N. 43; 97 A. 575 578) = 2 A.L.J. 287 = A.W.N. H905) 108;
R.. 17 A. 39 (40) = 14 A.W N. 191 ; 25 A. 385 (386) = 23 A.W.N. 80; 10 C.L.J.
467 (469) =3 Ind. Gas. 391 (392;.]

THE facts of this cace are sufficiently slated in the judgment of
Straight, J.

Munshi Madho Prasad, for the appellants.

Mr. Abdul Baoof and Mr. Abdul Majid for the respondents.

JUDGMENT.

[125] STRAIGHT, J. This appeal must prevail. On the 29th Sep-
tember 1883, a money decree was passed by the Court of the Subordinate
Judge of Ghazipur in favour of the decree-holders, respondents. On the
38th June 1884, in consequence of there being some arithmetical defect in
the decree, an application was made by the decree-holders to the Court
which passed it under s. 206 of the Code of Civil Procedure for amendment
of the decree. It is to be observed that an application under s. 206 contem-
plates that the judgment is correct, but the decree is not in conformity
with, but is at variance with, the judgment. In the present case the decree
was amended in the way prayed for by the Subordinate Judge on the 25th
November 1885. The first application for the execution of the decree was
made on the 5th November 1886. It was contended before the Subordinate
Judge below, and it is contended here, that the execution of the decree of the
29th September 1883, was barred by limitation, because the first application
for execution of the 5th November 1886, was made more than three years
after the date of the decree. It was answered by the decree-holder that he
is entitled to treat the order amending the decree of 25th November 1885, as
giving him a new period of limitation and a fresh starting point ; and that
this view has been adopted by the learned Subordinate Judge upon the
authority of Kishen Sahai v. The Collector of Allahabad (1). The judgment-
debtor appeals to this Court, and his contention is, first, that the case is in-
applicable, but that, if it is applicable, it is unsound, and the decree-holder is
not entitled to calculate the period of execution of decree from the 25th
November, 1885. With regard to the case of Kishen Sahai v. The Collector
of Allahabad (1) I have looked into the facts as set out in the report and
I find that the passage where Mr. Justice Oldfield in delivering the

* First Appeal, No. 33 of 1889, from an order of Babu LalU Prasad, Subordinate
Judge of Ghayipur, dated the 26th November 1888.

(1) 4 A. 137.

78



Y1I]



BINDA v. KAUNSILIA



13 All. 127



judgment; remarks "the proceedings under this apolication were substanti-
ally of the nature of a review of judgmeub" probably had reference to the
peculiar circumstances of a very peculiar case, in which the proceedings
ostensibly under s. 206 of the Code of Civil Procedure were of such a
character as that they could only properly have been dealt with by
review of judgment. I therefore do not [126] think that the authority
of Kishan Sahai v. The Collector of Allahabad (1) stands at all in my
way in allowing this appeal. The application for amendment, which was
made by the decree- holders in the case on the 28^h June, 1884, was
an application for amendment of decree pure and simple, and all that
was aske'i for was to make a correction in it in a statement of certain
figures, so as to make it a decree corresponding with the directions as
to costs given in the judgment. It was suggested tbat we should regard
the proceedings under s. 206 as amounting to a step-in-aid of execution,
namely, under para. IV of art. 179, sch. II of the Limitation Act.
I cannot take this view. The Court which has to deal with applica-
tions under s. 206 of the Code of Civil Procedure is the Court which
passed the decree, and not the Court which is executing the decree.
Further more is may be said in this case, that no application for execution of
the decree has ever been made, and therefore no foundation has been
laid for an application to take some step-in-aid of execution, that is to say,
in furtherance of the execution of decree. I think tbat the application of
the 5th November, 1886, was barred by limitation, and for these reasons
I allow the appeal, reverse the decree of the lower Court and hold that
the decree of the 29th September, 1883, was time-barred and cannot be
executed.

TYRRELL, J. I entirely agree. Appeal allowed.



13 A. 126 = 11 A.W.N (1891) 18.

APPELLATE CIVIL.
Before Mr. Justice Straight and Mr. Justice Mahmood.



1890

DEC. 18.

APPEL-
LATE
CIVIL.

13 A. 124 =

11 A.W.N.
(1891) 32.



BINDA (Plaintiff) v. KAUNSILIA AND ANOTHER (Defendants).*
[7th May, 1890.]

Hindu Law Suit fir restitution cf conjugal rights Desertion Cruelty Limitation
Act XV of 1877 (Limitation Act), s- 23, sch. ii, Nos. 34, 35 and 120.

The texts of the Hindu law relating to conjugal cohabitation and imposing res-
trictions upon the liberty of the wife, and placing her under the control of her
husband, are not merely moral precepts, but rules of law. The rights and duties
which they create may be enforced by either party against [127] the other and
not exclusively by the husband against the wife. The Civil Courts of British India,
as occupying the position in respect of judicial functions, formerly occupied in the
system of Hindu L*w by the king, have undoubtedly jurisdiction in respect of
the enforcement of such tights and duties. The Civil Courts of British India can
therefore properly ontertnin a suit between Hmdus for the restitution of conjugal
rights, or for tha recovery of a wife who has deserted her husband.

It is not necessary, as a condition precedent to such suits, the parties being
Hindus, that there should be any demand by the plaintiff and refusal by the defend-
ant. The provisions of arts. 34 and 35 of the second schedule of the Limitation

* Second Appeal, No. 1194 of 1887, from a decree of Babu Promoda Cham Banerji,
Judge of the Court of Small Causes (exercising the powers of a Subordinate Judge) of
Allahabad, dated the 3rd May 1887, reversing a decree of Babu Ganga Prasad, Munsif of



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 13 of 155)