S.C.R. SU RAGHUNATH DAS v. GOKAL CHAND AND ANOTHER (S. R. DAs C. J., BHAGW ATI, S. K. DAs and SuBBA RAO JJ.) Limitation-Suit for division of moveable property by co-heir, if one for specific moveable property-" Specific moveable property", Meaning of-Exclusion from computation of time covered by execu- tion proceeding-Indian Limitation Act, r908 (9 of r908), Arts. 49, r20, s. r4(r).
The words " specific moveable property " occurring in art. 49 of the Indian Limitation Act can mean only such specific items of moveable property in respect of which the plaintiff is entitled to claim immediate possession in specie from the defen- dant who has either wrongfully taken or is wrongfully with- holding them from him.
A suit by one heir against the others for recovery of his share of the moveable property of a deceased person is not one for a specific moveable property wrongfully taken ~uch as is con- templated by art. 49 and must, in the absence of any other speci- fic provision in the Act, be governed by art. r20 and not art. 49 of the Indian Limitation Ac!.
Mohomed Raisat Ali v. Musummat Hasin Banu, (r893) L.R. 20 I.A. r55, relied on. Consequently, in a case where the decree passed upon an award, without specifying any particular G. P. Notes or dividing . them, directed the elder brother to transfer G. P. Notes of the value of Rs. r3,200 to the younger brother from out of the G. P. Notes of the total value of Rs. 26,500 left by the father in the custody of the former, and the younger brother, failing to obtain relief by way of execution of the decree, brought the suit, out of which the present appeal arises, against the elder brother for a division of the G. P. Notes and a direction on him that G. P. Notes of the value of Rs. r3,200 might be transferred to him and claimed that the entire period covered by the execution proceed- ing from its inc.eption till the final disposal by the High Court should. be excluded in computing the period of limitation : Held, that the suit in substance was one for the division of moveable property held in joint ownership and not for possession of any specific. item of moveable property and as such was governed, not by art. 49, but by art: r20 of the Indian Limita- tion Act.
Gopal Chandra Bose v. Surendra Nath Dutt, (r998) r2 C.W.N, torn, distinguished and held inapplicable, x958 Raghunath Das v. Gokal Chand and another [1959] As the facts and circumstances of the case satisfied the
requirements of s. r4(r) of the Indian Limitation Act in comput- ing the prescribed period of limitation the time covered by the execution proceeding from its inception till its final disposal by the High Court must be excluded.
CIVIL APPELLATE JURISDICTION:· Civil Appeal No. 251of1954. Appeal from the judgment and decree dated April 22, · 1952, of the Punjab High Court in Civil Regular First Appeal No. l/E of 1947 arising out of the judgment
and decree dated July 1, 1947, of the Court of Sub- Judge, Ambala in Suit No. 239 of 1946. Tarachand Brijmohan Lal, for the appellant. Hardayal Hardy, for respondent No. 1. 1958. May 1.
The Judgment of the Court was delivered by Das c. J. DAS C. J.-This is a plaintiff's appeal against the judgment and decree passed on April 22, 1952, by a Division Bench of the Punjab High Court reversing
the decree passed on ,July 1, 1947, by the First Class Subordinate Judge, Ambala in favour of the plaintiff and dismissing the plaintiff's Suit No. 239 of 1946. The appeal has been preferred on the strength of a
certificate granted by the Division Bench on Deeem- ber 19, 1952. The facts material for the purpose of this appeal m9,y now be shortly stated: One Lala Beni Pershad died in the year 1910 leaving him surviving his widow Mst.
Daropadi (defendant respondent No. 2) and two sons by her, namely, Gokul Chand (defendant respondent No. 1) and Raghunath Das (plaintiff appellant) who was then a minor. Lala Beni Pershad left considerable
moveable properties including many G. P. Notes and also various im~oveable properties including agricul- tural land, gardens and houses. After his death the family continued to be joint until disputes and differ-
ences arose between the two brothers in 1934. Even- tually on November 12, 1934, the two brot.hers executed an agreement referring their disputes relating to the partition of the family properties to the arbi-
tration of Lala Ra:µiji Das who was a common relation. S.C.R. It is alleged that the respondent Gokul Chand had I958 disposed of part of the G. P. Notes and that at the date of the reference to arbitration G. P. Notes of the value Raghunaih· Das of Rs. 26,500 only were held by Gokul Chand, as the
Gokarchana Karta of the family. and·aizothei' On ,June 21, 1936, the arbitrator made an award which was signed by both the brothers statedly in Das c. J. token of their acceptance thereof. The award was
registered on July 28, 1936. By that award the arbitrator divided the immoveable properties and shops as therein mentioned. As regards the G. P. Notes f,he arbitrator directed and awarded that out of
the G. P. Notes of the value of Rs. 26,500, which then stood in the name of Gokul Chand, G. P. Notes Of the value of Rs. 13,300 should be entered into the names of Gokul Chand and Mst. Daropadi and the remaining
Notes of the value of Rs. 13,200 should be endorsed in the names of Raghunatb Das and Mst. Daropadi and that till her death Mst. Daropadi should al-One be entitled to the interest on the entire G. P. Notes of the
value of Rs. 26,500 and that after her death Gokul Chand would be the owner of the G. P. Notes of the value of Rs. 13,300 and Raghunath Das of G. P. Notes of the value of Rs. 13,200. The arbitrator further
directed Gokul Chand to pay to Raghunath Das a sum of Rs. 20,000 in four several instalments together with interest thereon as mentioned therein. On August 31, 1936, Gokul Chand applied to the
District Judge, Ambala under paragraph 20, of Sche· dulE) II to the Code of Civil Procedure for filing the award. During the pendency of those proceedings the two brothers entered into a compromise modifying
certain terms of.the award which are not material for the purpo.se of the present appeaL . By .an order made on November 18, 1936, the Distriot Judge directed the award as modified by the compromise to. be filed. and
passed a decree in accordance . with the terms of the award thus modified. On November 15, 1939, Raghunath Das made an application to the court of the Districtjudg~ for execn .• tion of the decree. The District J. ndge transferred
the application to the court of the Subordinate Judge [1959] z958 who directed notice of that application to be issued to Gokul Chand. Gokul Chand filed objection to the Raghunat1t Das
v. execution mainly on the ground that the decree had Gokal Chand been passed without jurisdiction in that the District and another Judge had no power to pass a decree for partition of
agricultural lands. The Subordinate Judge on Decem- Das c. J. ber 23, 1942, accepted Gokul Chand's plea and dis- missed the execution application. On appeal by Raghunath Das to the High Court a learned Single
·Judge on April 5, 1944, accepted the appeal, but on Letters Patent Appeal filed by Gokul Chand the Division Bench on March 15, 1945, reversed the order of the Single Judge and restored the order of dismissal
passed by the Subordinate .Judge. Having failed to obtain the relief granted to him by the decree passed upon the award on the ground of defect of jurisdiction in the court which passed the
decree and consequently for want of jurisdiction in the executing court, Raghunath Das, on August 21, 1945, instituted Suit No. 80 of 1945 against Gokul Chand for the recovery of Rs. 7,310-11-3 being the
balance with interest remaining due to him ont of the said sum of Rs. 20,000, awarded in his favour. Gokul Chand raised a number of pleas but eventually all his pleas were negatived and the senior Subordinate Judge,
Ambala, by his judgment pronounced on December 22, 1945, decreed the snit in favour of Raghunath Das. Gokul Chand did not file any appeal therefrom and consequently that decree became final and binding as
between the parties thereto. On June 5, 1946, Raghunath Das filed in the court of the Senior Subordinate Judge, Ambala a suit being Suit No. 239 of 1946 out of which the present appeal
has arisen. In this suit Raghunath Das claimed that Gokul Chand be ordered to transfer G. P. Notes of the value of Rs. 13,200 out of the G. P. Notes of the value of Rs. 26,500 to Raghunath Das and Mst. Daropadi by
means of endorsement or some other legal way, to get them entered into .the Government registers and to • niake them over to Raghunath Das, the plaintiff. Particulars of the numbers, the year of issue, the face
value and the interest payable on all the said G. P. '_, S.C.R. Notes were set out in the prayer. There was an r958 alternative prayer that Gokul Chand be ordered to pay Rs; 13,200 to the plaintiff. Gokul Chand filed his Raghun"11,. Das v.
written statement taking a number of pleas in bar to Gokal Chand the suit. Not less than 12 issues were raised, out of and another which only issues Nos. 2 and 3 appear from the judg-
ment of the Subordinate Judge to have been seriously Das c. J. pressed. Those two issues were as follows :-" (2) Is the suit within time ? and (3) Is the suit barred by Order 2, Rule 2 of the Civil Procedure Code?" The
Subordinate Judge decided both the issues in favour of the plaintiff. He held that Art. 49 of the Indian Limitation Act had no application to the facts of this case and that there being no other specific Article
applicable, the suit was governed by the residuary Art. 1'20. The learned Subordinate Judge also took the view that the period from November 15, 1939 to March 15, 1945, spent in the execution proceedings
should be excluded under s. 14 of the Indian Limita- tion Act in computing the period of limitation under Art. 120. The learned Subordinate Judge also held that the cause of action in the earlier suit for the
recovery of the sum of Rs. 7,310-11-3 was not the same as the cause of action in the present suit and, there- fore, the present suit was not barred under 0. 2, r. 2, of the Code of Civil Procedure. The learned Subordi-
nate Judge accordingly decreed the suit in favour of Raghunath Das. Gokul Chand appealed to the High Court. The appeal came up for hearing before a Division, Bench of the -Punjab High Court. Only two points
were pressed in support of the appeal, namely, (1) whether the suit was barred by time and (2) ·whether the suit was barred under 0. 2, r. 2, of the Code of Civil Procedure. Learned counsel appearing for Gokul
Chand urged that the suit was one for the recovery of "other specific moveable property " that is to say specific moveable property other than those falling within Arts. 48, 48A and 48B of the Indian Limita-
tion Act and was accordingly governed by ·Art. 49. · • Article 49 provides three years' perio1 of limitation • 104 [1959] z958 for a suit for " other specific moveable property or for
compensation for wrongful taking or injuring or wrong- Raghunath Das ±' ll d h d v. u y etaming t e same · an this period of three Gokal Chand years begins to run from " when the property is
and another wrongfully taken or injured or when the detainer's possession becomes unlawful". In the opinion of the Das c. J. High Court the suit was for the recovery of specific Government promissory notes and this, according to
the High Court, was plain from t)le perusal of para. 18 of the.plaint which set out the reliefs claimed by the plaintiff in the suit. The reference to the numbers, value and the year of issue of G. P .. Notes and the
rates of interest carried by them appeared to the High Court to be decisive on this point. The High Court held that the suit was governed by Art. 49 and that, as the plaintiff would be out of time even if the period
between November 15, 1939, and March 15, 1945, was excluded, the High Court did not think it necessary to consider the question of the applicability of s. 14 of the Indian Limitation Act.
As its finding on the issue of limitation was sufficient to dispose of the suit, the High Court did not discuss the other issue founded on 0. 2, r. 2, of the Code of Civil Procedure but allow-
ed the appeal and dismissed the suit as barred by limitation. We are unable to accept the decision of the High Court as correct. The High Court overlooked the fact that so far as the G. P. Notes were concerned the
decree upon the award only declared the rights of the parties. Under the decree Raghunath Das was entitled to have G. P. Notes of the value of Rs. 13,200 endorsed in the names of himself and Mst. Daropadi
out of the G. P. Notes of the value of Rs. 26,500. The award or tl:j,e decree thereon did not actually divide the G. P. Notes by specifying which particular G. P. Notes were to be endorsed in the names of Gokul
Chand and Mst. Daropadi or which of them were to be endorsed in the names of Raghunath Das and his mother. Until the G. P. Notes were actually divided, • ·either by consent of parties or by the decree of the
court, neither of the brothers could claim any parti- cular piece of tl. P. Notes as his separate property or . ·{ S.C.R. ask for delivery of any particular G. P. Notes in specie.
Gokul Chand not being agreeable to come to an amic- able division of the G. P. Notes, Raghunath Das had perforce to seek the assistance of the court and pray. that the entire lot of G. P. Notes of the value of
Rs. 26,500 be divided by or under the directions of the court into two lots and one lot making up the value of Rs. 13,200 be endorsed in favour of him (Raghunatli Das) and his mother by or on behalf of' Gokul Chand
and then delivered-to him, the plaintiff. He could not in his pfaint claim that particular pieces ofG. P. Notes making up 'the value of Rs. 13,200 be delivered to him in specie. This being the. true position, as we conceive
it, Raghunath Das's suit cannot possibly be regarded as·a suit for a "specific moveable property". That expre~ion is apt only to cover a suit wherein the plaintiff can allege that he is· entitled to certain
specific moveable property and/or of which he is ·presently entitled to possession in specie and which the defendant has wrongfully taken from him and/or is illegally withholding from him. That is not the
position here. It should be remembered that the two brothers were entitled to the G. P. Notes of the value of Rs. 26,500 originally as joint coparceners and there- after, when the decree upon the award had been
passed; as tenants-in-common. Until actual partition by consent of the parties or by court Gokul Chand, who held the custody of the G. P. Notes, could not be said to have taken them wrongfully 'from Raghunath
Das and his possession of them could not be said to be or to have become unlawful. These considerations clearly distinguish. this case from the case Of Gopal Chandra Bose v. Surendra Nath Dutt (1) on which the
High Court relied because in that case th~ defendant had no right to or interest in the G. P. Notes in ques- tion and had no right to retain possession thereof. Therefore, to the present situation the terminus a quo
specified in the third column of Art. 49 can have no application. It is now well established that a suit by an· heir against other heirs to recover his share- of the moveable estate of a deceased person. is not one for
(1) (1908) XII c. w. N. IOlO. Raghunalh Da·s v. Gokal Chand and another Das C. ]: Raghunath Das v. Gokal Chand and another Das C. j. [1959] specific moveable property wrongfully taken such as
is contemplated by Art 49, but is governed by Art. 120. See Mohomed Riasat Ali v. Mussumat Basin Banu('). The only difference between the facts of that case and those of the present case is that here the rights of the
parties had been declared by the decree upon the award but that circumstance does not appear to us to make any material difference in the application of the principle laid down by the Judicial Committee. The
substance of the plaintiff's claims in both cases is for separating his share out of the estate and for allot- ment and delivery to him of his share so separated. In short such a suit is nothing but a suit for partition
or division of the moveable properties held jointly or as tenants-in-common by the parties and there being no specific Article applicable to such a suit it nlust be governed by Art. 120.
The period of limitation fixed by Art. 120 is six years from the date when the right to sue accrues.· In order, therefore, to be within the period of limita- tion the plaintiff claims to exclude the period N ovem-
ber 15, 1939, to March 15, 1945, spent in the execu- tion proceedings. Section 14 (1) of the Indian Limita- tion Act runs as follows: " 14 (1) In computing the period of limitation
prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defen-
dant, shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, for defect of jurisdiction, or other cause of a like nature is unable to entertain
it." The respondent contends that the above section has no application to the facts of his case. We do not think that such contention is well-founded. The execution proceedings initiated by Raghunath Das
were certainly civil proceedings and there can be no . doubt taat he prosecuted such civil proceedings with due diligence :ind good faith, for he was obviously (r) (1893) L. R. zo I. A. 155.
S.C.R. anxious to have his share of the G. P. Notes separately i958 allocated to him. He lost in the execution court but d Raghunath ·Das went on appeal to the High Court where he succee ed
.v. before a Single Judge, but eventually he failed before Gokal ch1ind the Division Bench which reversed the order the and another Single Judge had passed in his favom;. Therefore,
there can be no question of want of due diligence and Das .c .. f: good faith on the part of Raghunath Das. In the next place the section excludes the time spent both in a court of first instance and in a court of appeal.
Therefore, other conditions being satisfied, the entire period mentiqned above would be liable to be excluded. The only questions that remain are (1) whether the proceedings were founded upon the same cause of
action and (2) whether he prosecuted the proceedings in good faith in a court .which for defect of jurisdic- tion was unable to entertain it. The execution pro- ceedings were founded upon his claim to enforce his
rights declared under the decree upon the award. The cause of action in the present suit is also for enforce- ment of the same right, the only difference being that in the former proceedings Raghunath Das was seeking
to enforce his rights in execution and in the present instance he is seeking to enforce the same rights in a regular suit. There is nothing "new that he is asking for in the present suit.
That he prosecuted the execution proceedings in the , Subordinate Court as well as in the High Court in good faith cannot be denied, for the Single Judge of the High Court actually upheld his contention that the court had
jurisdiction to entertain his application. The execu- tion proceedings failed before the Division Bench on no other ground than that the executing court had no jurisdiction to entertain the application, because the
decree sought to be executed was a J.tullity having . been passed by a court which had no jurisdiction to pass it. Therefore, the defect of jurisdiction in the court that passed the decre"e became, as it were,
attached to the decree itself and the executing court could not entertain the execution proc~eding on account of the same defect. The defect of jurisdiction • in the executing court was finally dete~mined when
Raghunath Das v. Gokal Chand and another Das C. ]. [1959] the Division Bench reversed the deCision of the Single Judge who had entertained the execution proceeding. In our opinion Raghunath Das is entitled to the
benefit of s. 14 (1) of the Indian Limitation Act and the period hereinbefore mentioned being excluded, there can be .no doubt that the suit was filed well within the prescribed period of limitation and the
judgment of the Division Bench cannot be sustained. In the view it took on the question of limitation the Division Bench did not consider it necessary to go into or give any decision on the other issue, namely,
as to whether the suit was barred by 0. 2, r. 2. The suit should, therefore, go back to the High Court for determination of that issue. The result, therefore, is that we accept the appeal, set aside the judgment and
decree of the High Court and remand the case "back to the High Court for a decision on issue No. 3 only. The appellant will get the costs of this appeal as well as the costs of the hearing in the High Court resulting
in the decree under appeal and the general costs of the appeal and the costs of further hearing on remand \Vil! be dealt with by the High Court. Appeal allowed. Gase remanded . ·1
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