Case: Prem Lata Agarwal Vs. Lakshman Prasad Gupta &amp; Ors

1. This appeal is by special leave from the judgment dated 21st March, 1966 of the Madras High Court dismissing the appeal preferred by the appellant against the decree holders application for execution of the decree2. The appellant is one of the judgment-debtors brought on record as legal representative of a deceased judgment-debtor Lala Baijnath Prasad. Respondent No. 1 Lakshman Prasad Gupta was one of the plaintiffs. Pratap Chand and Basudeb Prasad respondents Nos. 2 and 3 respectively are the sons of a judgment-debtor Girdharilal Agarwala3. The plaintiff respondent Lakshman Prasad Gupta was married to the sister of Lala Bansilal. Bansilal belonged to the joint family which consisted inter alia of the appellants father. There were five branches of the said joint family of the judgment-debtors, three whereof were at Banaras, Calcutta and Naini and the other two were the branches of the descendants of Mohanlal and of Lala Baijnath Prasad, father of the appellant, respectively. The said joint family had valuable properties in and around the town of Arrah in Bihar. There are alleged to be valuable properties of the joint family also at Allahabad, Banaras, Bombay, Calcutta and Madras4. Some time in the year 1926 Lala Pratap Chand, one of the descendants of Mohanlal who was a grand-uncle of Lala Bansilal filed a partition suit in the court of the Subordinate Judge at Allahabad. A preliminary decree was passed in the said partition suit on 14th February, 1927. An appeal was preferred and it was dismissed. An amicable settlement was arrived at in the partition suit on 13th January, 1931 for partition of the properties into five equal lots and allotment of the shares. Thereafter a Commissioner was appointed in the partition suit to go into accounts and prepare five lots. The branches inter se raised disputes as to liability for loans alleged against the joint family. The Commissioner prepared his report on 18th May, 1936. Final decree was passed on 13th January, 1939. An appeal was preferred against the said final decree in the partition suit to the High Court at Allahabad. The appeal was disposed on 6th December, 19495. The plaintiff Lakshman Prasad Gupta and six others filed suit No. 76 of 1937 in the Court of the First Subordinate Judge at Arrah in Bihar and obtained a decree on 20th July, 1938 for Rs. 18,540 and for costs Rs. 1,840/4/- aggregating Rs. 20,380/4/-. This decree was against Banwarilal and other members of the joint family to which the appellants father belonged. The decree was transferred from Arrah to the Court of the Civil Judge at Allahabad where on 2nd June, 1941 the decree-holder commenced execution proceedings marked as Execution Petition No. 38 of 1941. In that execution petition the decree-holders prayed for attachment and sale of Shri Krishna Desi Sugar Works at Jhusi known as the Jhusi Sugar Mills in the District of Allahabad which belonged to the joint family6. The execution proceedings were according to the decree-holders stayed under orders of the Allahabad High Court and after the stay order was vacated the execution proceedings were revived on 13 May, 1950. The Jhusi Sugar Mills was attached on 11th July, 1952 and it was sold on 19th February, 1955. The sale was set aside on 31st May, 1955 pursuant to objections of the judgment-debtors that the Jhusi Sugar Mill could not be sold because of the provisions of the U. P. Encumbered Estates Act, 1934. It may be stated here that some time in the month of September, 1935 Baijnath Prasad filed an application before the Collector of Allahabad for protection and relief under the U. P. Encumbered Estates Act of 1934 and it was registered as Encumbered Estates Suit No. 25 of 19357. Thereafter the decree-holders on 17th March, 1956 made an application in the Arrah Court for transfer of the decree. On 6th June, 1956, the Subordinate Judge at Arrah transferred the decree to the Madras High Court. On 13th August, 1956 the decree-holders filed in the Madras High Court an application for attaching the properties of the joint family. This application in the Madras High Court is the subject matter of the present appeal

Reasoning: We are furthermore of opinion that the conclusion of the learned Single Judge of the Madras High Court on that point is correct18. In the present case, there was stay of execution proceedings. On 13 May, 1950 the execution proceedings were revived. The judgment-debtors did not challenge the order dated 13 May, 1950. The judgment-debtors impeached the sale only on a ground covered by the U. P. Encumbered Estates Act, 1934. The judgment-debtors further in impeaching the sale of Jhusi Sugar Mill did not advance before the Civil Judge at Allahabad reviving the execution proceedings, attaching the Jhusi Sugar Mill and directing the sale of the Sugar Mill was barred by limitation. The principle of res judicata applies to execution proceedings.The judgment-debtors in the present case did not raise any objection as to limitation in regard to execution of the decree before the Civil Judge at Allahabad. On the contrary the judgment-debtors asked for setting aside the sale on the basis of revival of execution proceedings. The revival of execution was not challenged and the judgment-debtors are thereby barred by the principle of res judicata from questioning directly or indirectly the order dated 13 May, 1950 reviving the execution proceedings19. When the appellant made the application for special leave, the appellant referred to an affidavit affirmed by the appellants father on 12 February, 1957 in the execution proceedings in the Madras High Court. The copy of the said affidavit annexed to the petition for special leave in this Court is in seven paragraphs. In paragraph 6 of the said affidavit it is alleged that the decree is against 5 branches and the plaintiff Lakshman Prasad in collusion with the other branches excluded the other four branches and chose to proceed only against the appellants branch though the other four branches were possessed of vast properties. The further allegations in paragraph 6 of the said affidavit are that the object of the plaintiff is to harass only one branch and the application is not bona fide. The plaintiff respondent in answer to the petition for special leave affirmed an affidavit in this Court that paragraph 6 in the said affidavit was an interpolation and was not at all in existence in the affidavit filed in the Madras High Court. The plaintiff respondent obtained a photostat copy of the said affidavit filed in the Madras High Court. The Photostat copy established that paragraph 6 was not there and further that the affidavit was affirmed at Allahabad on 12 February, 1957 and not at Madras. Furthermore, the affidavit was explained to the deponent Baijnath Prasad as will appear from the Photostat copy as annexed to the petition whereas in the copy annexed to the petition for special leave there was no such statement. It is serious matter that the appellant asked for relief on the basis of false copies of affidavits. An explanation was suggested in the affidavit of the appellant that the copy was annexed in accordance with the draft that had been sent by the Madras lawyer. It is beyond comprehension as to how an incorrect copy would be sent by the Madras lawyer. Counsel for the appellant realised the gravity of the situation and conceded that the matter should be proceeded with on the basis as if paragraph 6 did not exist. The appellant is guilty of lack of uberrima fides. We have therefore proceeded on the basis that paragraph 6 did not exist in the copy of the said affidavit20. The Madras High Court upheld the order of the learned Single Judge entitling the decree-holder to the exclusion of the period spent in prosecuting prior infructuous execution proceedings before the Civil Judge at Allahabad. The decree-holder was allowed to proceed with the execution proceedings and the Madras High Court remitted the matter to the Master to consider the questions indicated in the judgment and the judgment-debtors were allowed to raise objections to the executability of the decree apart from those of limitation as indicated in the judgment of the learned Single Judge. We are of opinion that the Madras High Court is right in holding that the decree-holder is entitled to the benefit of exclusion of time during which the executing proceedings were stayed by the order of the Allahabad High Court and the decree-holder proceeded with the said execution proceedings in good faith and with due diligence.