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PETITIONER: RAGHUNATH DAS

       Vs.

RESPONDENT: GOKAL CHAND AND ANOTHER

DATE OF JUDGMENT: 01/05/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. DAS, S.K. SUBBARAO, K.

CITATION:  1958 AIR  827            1959 SCR  811

ACT: Limitation-Suit  for  division of moveable property  by  co- heir,  if  one  for specific  moveable  property-"  Specific moveable  Property ", Meaning of--Exclusion from  computatio of  time covered by execution proceeding--Indian  Limitation Act, 1908 (9 of -1908), Arts. 49, 120,  s. 14(1).

HEADNOTE: 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 defendant  who has either wrongfully taken or is  wrongfully withholding 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  such as  is contemplated by art. 49 and must, in the  absence  of any other specific provision in the Act, be governed by art. 12o and not art. 49 of the Indian Limitation Act. Mohomed  Raisat Ali v. Musummat Hasin Banu, (1893)  L,R.  2o I,A. 155, 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. 13,200 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. 13,200 might be transferred to him and  claimed that  the entire period covered by the execution  proceeding from its inception 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. 120  of  the

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Indian Limitation Act. Gopal  Chandra Bose v. Surendra Nath Dutt, (1908) 12  C.W.N. 1010, distinguished and held inapplicable. 812 As  the  facts and circumstances of the case  satisfied  the requirements  of  s. 14(1) Of the Indian Limitation  Act  in computing  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.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  251  of 1954. Appeal from the judgment and decree dated April 22, 1952, of the Punjab High Court in Civil Regular First Appeal No.  1/E of 1947 arising out of the judgment and decree dated July 1, 1947,  of the Court of SubJudge, 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. T.-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 December  19, 1952. The facts material for the purpose of this appeal may 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 immoveable properties  including  agricul- tural land, gardens and houses.  After his death the  family continued to be joint until disputes and. differences  arose between  the two brothers in 1934.  Eventually oil  November 12,  1934, the two brothers executed an agreement  referring their  disputes  relating  to the partition  of  the  family properties  to the arbitration of Lala Ramji Das who  was  a common relation. 813 It  is alleged that the respondent Gokul Chand had  disposed of  part of the ()’F.  P. Notes and that at the date of  the reference  to  arbitration G. P. Notes of the value  of  Rs. 26,500 only were held by Gokul Chand, as the Karta of the family. On  June  21, 1936, the arbitrator made an award  which  was signed  by  both the, brothers statedly ill token  of  their acceptance  thereof.  The award was registered on  July  28, 1936.   By that award the arbitrator divided the  imoveable, properties  and shops as therein mentioned.  As regards  the G. P. Notes the 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 alone be entitled to the interest on the entire G. P.  Notes

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of  the value of Its. 26,500 and that after her death  Gokul Chand would be the owner of the ("X.  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 Schedule 11 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 purpose of the present appeal.  By  an order made on November 18, 1936, the District 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 District judge for execution of the decree. The District Judge transferred the application to the  court of the Subordinate Judge 814 who  directed  notice of that application to  be  issued  to Gokul  Chand.  Gokul Chand filed objection to the  execution mainly on the ground that the decree had been passed without jurisdiction in that the District Judge had no power to pass a   decree  for  partition  of  agricultural   lands.    The Subordinate  Judge  on  December 23,  1942,  accepted  Gokul Chand’s  plea and dismissed 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  out  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 suit 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   make  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. 815 Notes were set out in the prayer.  There was an  alternative prayer that Gokul Chand be ordered to pay Rs. 13,200 to  the plaintiff.  Gokul Chand filed his written statement taking a

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number of pleas in bar to the suit.  Not less than 12 issues were  raised, out of which only issues Nos. 2 and  3  appear from  the  judgment of the Subordinate Judge  to  have  been seriously 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.  120.   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 Limitation  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, therefore, the present  suit was  not  barred  under 0. 2, r. 2, of  the  Code  of  Civil Procedure.    The  learned  Subordinate  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  Arta. 48, 48A and 48B of the Indian  Limitation  Act and  was  accordingly  governed by  Art.  49.   Article  49. provides three years’ period of limitation I04 816 for  a  suit for " other specific moveable property  or  for compensation  for wrongful taking or injuring or  wrongfully detaining  the same " and this period of three years  begins to  run  from  " when the property is  wrongfully  taken  or injured  or when the detainer’s possession becomes  unlawful ".  In  the opinion of the High Court the suit was  for  the recovery  of specific Government promissory notes and  this, according  to the High Court, was plain from the 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 allowed 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.

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Daropadi out of the G. P. Notes of the value of Rs.  26,500. The award or the 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 particular piece of G. P. Notes as his separate property or 817 ask  for delivery of any particular C. P. Notes  in  specie. Gokul  Chand  not  being agreeable to come  to  an  amicable division  of the G. P. Notes, Raghunath Das had perforce  to seek  the assistance of the court and pray that  the  entire lot of C. 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  (Raghunath Das) and his mother by or on  behalf  of Gokul  Chand and then delivered to him, the  plaintiff.   He could  not in his plaint claim that particular pieces of  G. 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  expression 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  thereafter, 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 the defendant had no right to or interest in the G. P. Notes in question 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. 1010 818 specific  moveable  property  wrongfully taken  such  as  is contemplated  by Art 49, but is governed by Art.  120.   See Mohomed  Riasat  Ali v. Mussumat Hasin Banu (1).   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 allotment 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 must be  governed  by

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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  limitation  the plaintiff claims to exclude the period November 15, 1939, to March 15, 1945, spent in the execution proceedings.  Section 14 (1) of the Indian Limitation 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 defendant, 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 that he  prosecuted  such  civil proceedings  with due diligence and good faith, for lie  was obviously (i)  (1893) L. R. 20 I.  A. 155. 819 anxious  to  have his share of the G.  P.  Notes  separately allocated  to him.  He lost in the execution court but  went on  appeal  to the High Court where he  succeeded  before  a Single  Judge, but eventually he failed before the  Division Bench  which reversed the order the Single Judge had  passed in his favour.  Therefore, there can be no question of  want of  due  diligence and 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 mentioned 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 jurisdiction ",as unable to entertain it.  The execution proceedings 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  enforcement 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  execution 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 nullity having been passed by a court  which had  no jurisdiction to pass it.  Therefore, the  defect  of jurisdiction in the court that passed the decree became,  as it  were,  attached to the decree itself and  the  executing court  could  not  entertain  the  execution  proceeding  on account  of the same defect.  The defect of jurisdiction  in the executing court was finally determined when 820 the Division Bench reversed the decision of the Single Judge

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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  here  in before 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 will be dealt with by the High Court. Appeal allowed. Case remanded. 821