Sripati Charan Dhar vs Kanailal Dhar

R.M. Datta, J.—This application arises out of the pending execution application which was made by a tabular statement by one Sripati Charan Dhar, one of the decree-holders herein, Sripati died on April 20, 1972. The heirs and legal representatives of bripati did not come forward to ask for leave to continue the execution proceeding, but another set of decree-holders in respect of the same partition decree have applied for leave to continue and/or to proceed with the tabular statement affirmed by the said Sripati Charan Dhar on September 10, 1971. Accordingly, it has become necessary for the present Petitioners to obtain leave of this Court to continue the pending proceeding in view of the fact that if a fresh application is made by the said set of decree-holders then it may be contended that the decree has become barred by the law of limitation.

The suit herein was filed in 1940. A preliminary decree, inter alia, of partition was passed on August 30, 1944 and in accordance with the terms of settlement put in, the special referee appointed therein was directed to take accounts. Pursuant thereto a report was filed on June 4, 1958. By the said report the personal drawings and liabilities to the joint estate of the five sons of the settlor were determined as follows:

(i) Ramesh Chandra Dhar ... ... Rs. 1,09,231- 0-3

(ii) Sripati Charan Dhar ... ... Rs. 2,106- 2-8

(iii) Suresh Ch. Dhar ... ... Rs. 805-13-0

(iv) Tarak Ch. Dhar ... ... Rs. 55,147-1-0

(v) Ganesh Ch. Dhar ... ... Rs. 3,370-10-8

Rs. 1,70,660-11-6

Under the said return the said sum of Rs. 1,70,660-11-7 was directed to form part of the assets of the joint estate. It was directed that for the realisation of the said respective sums from the respective sons of the said settlor, the cost of the Solicitors of the respective parties were to be paid first out of the said sum and the balance or surplus, if any, was to be divided equally amongst the said five sons of the settlor accordingly.

On February 24, 1909, Mullick J. continued the said report subject to certain variations and a final decree was passed thereon. Accordingly, under the said final decree the liability of Ramesh Chandra Dhar was determined for the sum of Rs. 1,09,231-0-3 to the joint estate. In para. 32 of the petition it has been stated as follows:

By and under the terms of the said final decree dated November 24, 1959, your Petitioner s father Suresh Chandra Dhar, since deceased, was entitled to 1/5th share in the said sum of Rs. 1,09,231,02, viz. a sum of Rs. 21,846-20. The branches of Ganesh Chandra Dhar, since deceased, Sripati Charan Dhar since deceased and the Defendant Tarak Chandra Dhar each was also entitled to 1/5th share in the said sum of Rs. 1,09,231-02. The said heirs and legal representatives and representatives-in-interest of the said Ramesh Chandra Dhar, since deceased, have failed and neglected and/or refused to pay to your Petitioner and his brothers, viz., Kashinath Dhar and Amar Nath Dhar jointly as heirs of the said Suresh Chandra Dhar, since deceased, the said sum of Rs. 21,846-20 or any portion thereof in spite of repeated requests. The said heirs of Ramesh Chandra Dhar, since deceased, have however settled and paid the dues of the said Tarak Chandra Dhar in respect of the said equal 1/5th share in the said sum of Rs. 1,09,231-02 sometime in July 1971.

On the basis of the aforesaid facts it is contended on behalf of the Petitioners that the final decree passed herein was a joint decree within the meaning of the provisions of Order 21, Rule 15 of the CPC and accordingly, after the death of Sripati, the other branch of his deceased brother Suresh can apply for leave to continue the execution proceedings as asked for herein.

The main question that arises here in this application is whether the decree passed herein is a joint decree within the meaning of the aforesaid provision of the Code, specially in view of the fact that the share of each of the said five sons were declared to be 1/5th. Mrs. Bonerji, on behalf of the Petitioners, contends that by the said final decree it was directed that after realisation of the said respective sums from the respective sons of the said settlor, the cost of the respective Solicitors of the parties were first to be paid. Accordingly, it could not be an ascertained sum in respect of each decree-holder unless and until the Solicitors'' costs were paid off.

To my mind, the final decree has to be construed as on the date of the decree and not after the costs of the Solicitors have been taxed and paid off and the decretal amount in respect of 1/5th of each of the sons had been ascertained. Accordingly, when Sripati applied for execution in respect of the sum of Rs. 9,000 payable to the heirs of Ramesh for realisation of his decretal amount he actually applied on behalf of the heirs of Suresh as well, namely, the Petitioners in this application, because, if Sripati had realised that amount in execution, the heirs of Suresh could have laid their hands proportionately over the said sum. Accordingly, by the death of Sripati the heirs of Suresh are entitled to come in and apply for leave to continue the execution application. It is true that the heirs of Suresh, being the present Petitioners, did not apply for execution in respect of the decree passed in favour of Suresh, but it might be legitimately contended by them that since Sripati alone could make the said application on behalf of Suresh as well that was why it was not necessary for the heirs of Suresh to join in the said application. I uphold the contention of Mrs. Bonerji on this point.

It is true that the shares of the parties in the final partition decree are definite and each of the five brothers is entitled to 1/5th share, but until the sum becomes an ascertained sum it is not possible for any one of the decree-holders to execute the decree and to appropriate the decretal amount for himself only. The nature of the decree is such that until the Solicitors'' costs would be taxed and paid off nobody would be in a position to know how much would be the liability under the decree and accordingly, if execution proceedings would be taken the same would be bound to be taken on behalf of all the decree-holders even though all of them would not join together. In any event, I am satisfied from col. 7 of the tabular statement that Sripati made the application not only for himself but also on behalf of the heirs of Suresh who are the present Petitioners before me. In view of those special facts which are involved in this case, the decisions AIR 1939 302 (Lahore) and Valchand Gulabchand Shah Vs. Manekbai Hirachand Shah and Another, which have been cited by Mr. Mullick are distinguishable.

It is next contended that the tabular statement taken out by Sripati has lapsed on the death of Sripati because the adjourned date was not extended nor could the same be extended after his death. The warrant in favour of the Solicitors stood discharged on the date of death of Sripati. The heirs of Sripati did not choose to come forward to make any application and a long time was allowed to pass and thereafter the heirs of Suresh made the present application. A supplementary affidavit has been filed explaining the delay and I am satisfied about the explanation given in the said affidavit. Since the warrant stood discharged by reason of the death of Sripati there was no question of extending the date of the tabular statement and the same tabular statement could be reviewed if an order would be made in this application for leave to continue the proceeding. There could be no question of any abatement of the said execution application.

I, accordingly, make an order in terms of prayers (a) and (e) of the summons. Regarding the rest of the prayers the same are not dealt with in this application inasmuch as the same are the subject-matter of the pending tabular statement herein and the same would be considered in dealing with the said tabular statement. Let the execution application herein be moved a fortnight hence and the said date is fixed as the adjourned date of the said tabular statement. In the facts and circumstances of this case, the Petitioners are to pay the costs of the Respondents. Certified for counsel.