Case Note & Summary
This civil appeal arose from a suit filed by Raghunath Das against his brother Gokul Chand and mother Mst. Daropadi for division of Government Promissory Notes of the total value of Rs. 26,500 left by their father Lala Beni Pershad. The father died in 1910 leaving immovable properties and G.P. Notes. Disputes between the brothers led to an arbitration agreement in 1934. The arbitrator made an award on June 21, 1936, directing that out of the G.P. Notes of Rs. 26,500, notes of Rs. 13,300 be entered in the names of Gokul Chand and Mst. Daropadi and the remaining notes of Rs. 13,200 in the names of Raghunath Das and Mst. Daropadi, with the mother entitled to interest till her death. The award was modified by a compromise and a decree was passed on November 18, 1936. Raghunath Das applied for execution on November 15, 1939, but the executing court dismissed the execution on December 23, 1942, holding that the decree had been passed without jurisdiction over partition of agricultural lands. The Punjab High Court initially allowed an appeal on April 5, 1944, but a Division Bench in Letters Patent Appeal on March 15, 1945 restored the dismissal. Thereafter, Raghunath Das filed the present suit on June 5, 1946, seeking transfer of G.P. Notes of Rs. 13,200 to himself and his mother or alternatively payment of Rs. 13,200. The trial court decreed the suit holding that Article 49 of the Indian Limitation Act did not apply and that the period of the execution proceedings was excludable under Section 14(1). The Punjab High Court reversed, holding that the suit was for specific moveable property under Article 49 and barred by time. The Supreme Court held that the suit was not for any specific item of moveable property because the G.P. Notes had never been divided and no particular note could be claimed in specie. Therefore, Article 120 applied. The Court further held that the time spent in execution proceedings from November 15, 1939 to March 15, 1945 was excludable under Section 14(1) as the execution proceedings had been prosecuted in good faith before a court lacking jurisdiction. The High Court's decision was set aside and the suit was held to be within limitation.
Headnote
A) Limitation - Specific Moveable Property - Article 49 of Indian Limitation Act, 1908 - Suit by co-heir for division of undivided Government Promissory Notes cannot claim any particular note in specie, so Article 49 does not apply, and residuary Article 120 governs - Court held that the words 'specific moveable property' in Article 49 mean only such specific items as plaintiff is entitled to immediate possession in specie from defendant who wrongfully took or detained them; since the award/decree did not divide the G.P. Notes or specify particular notes, the suit was for division of joint family moveables, not for specific moveable property. (Paras Not mentioned)
B) Limitation - Exclusion of Time - Section 14(1) of Indian Limitation Act, 1908 - Time spent in execution proceedings from inception to final disposal by High Court excluded when those proceedings were prosecuted in good faith before a court lacking jurisdiction - Court held that the facts satisfied Section 14(1) because the execution proceedings failed on ground of defect of jurisdiction, so the entire period from November 15, 1939 to March 15, 1945 was excludable in computing limitation under Article 120. (Paras Not mentioned)
Issue of Consideration
Whether a suit by one co-heir against another for division of undivided Government Promissory Notes is a suit for specific moveable property under Article 49 of the Indian Limitation Act, 1908, or falls under residuary Article 120; whether the period spent in execution proceedings should be excluded under Section 14(1).
Final Decision
The Supreme Court held that the suit was governed by Article 120, not Article 49, as the G.P. Notes had never been divided and no specific items could be claimed in specie; the period covered by execution proceedings from November 15, 1939 to March 15, 1945 was excludable under Section 14(1); consequently the suit was within limitation. The High Court's order dismissing the suit as barred by limitation was set aside.
Law Points
- Legal points not extracted
- Specific moveable property means specific items claimable in specie
- suit for division of joint family moveable property not under Article 49 but Article 120
- time spent in execution proceedings before court lacking jurisdiction excluded under Section 14(1)
Case Details
1958 LawText (SC) (05) 10
Civil Appeal No. 251 of 1954
Sudhi Ranjan Das (CJ), Natwarlal H. Bhagwati, S.K. Das, K. Subbarao
Citation not available, 1958 AIR 827, 1959 SCR 811
Tarachand Brijmohan Lal, Hardayal Hardy
Gokul Chand and another (Mst. Daropadi)
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Nature of Litigation
Civil appeal against High Court judgment dismissing a suit for division of Government Promissory Notes held by joint family as barred by limitation.
Remedy Sought
Plaintiff-appellant sought from Supreme Court to set aside High Court dismissal, hold suit governed by Article 120, exclude execution period under Section 14(1), and restore trial court decree for division and transfer of G.P. Notes.
Filing Reason
The plaintiff failed to obtain relief through execution of a decree based on an arbitration award because the executing court and the court passing the decree lacked jurisdiction over partition of agricultural lands, leading to dismissal of execution; he then filed suit for division of undivided G.P. Notes.
Previous Decisions
Trial court decreed suit holding Article 120 applied and execution period excluded; Punjab High Court reversed, held Article 49 applied and suit barred by limitation even after excluding execution period; earlier execution application dismissed by Subordinate Judge, restored by Single Judge, then finally dismissed by Letters Patent Bench.
Issues
Whether the suit for division of Government Promissory Notes was for specific moveable property under Article 49 of the Indian Limitation Act, 1908, or fell under residuary Article 120.
Whether the period spent in execution proceedings should be excluded under Section 14(1) of the Indian Limitation Act, 1908, while computing limitation.
Submissions/Arguments
Appellant contended that the suit was in substance for division of moveable property held in joint ownership, not for possession of any specific item, and therefore Article 120 applied; further, the entire period from inception of execution proceedings to final disposal by High Court should be excluded under Section 14(1).
Respondent contended that the suit was for recovery of 'other specific moveable property' within Article 49, with three-year limitation, and that even excluding execution period the suit was time-barred.
Ratio Decidendi
Article 49 of the Indian Limitation Act applies only to suits for specific moveable property where the plaintiff is entitled to immediate possession in specie from a defendant who has wrongfully taken or detained it. A suit by a co-heir for division of undivided joint family moveables cannot specify particular items and is not for specific moveable property; it falls under the residuary Article 120. Time spent in execution proceedings prosecuted in good faith before a court lacking jurisdiction due to defect of jurisdiction is excluded under Section 14(1).
Judgment Excerpts
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.
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 ask for delivery of any particular C. P. Notes in specie.
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.
Procedural History
Lala Beni Pershad died in 1910 leaving widow and two sons. Disputes arose in 1934; arbitration agreement signed November 12, 1934. Arbitrator made award June 21, 1936, registered July 28, 1936. Gokul Chand applied August 31, 1936 under Schedule II para 20 CPC for filing award; compromise modified award; District Judge passed decree November 18, 1936. Raghunath Das applied for execution November 15, 1939; Subordinate Judge dismissed execution December 23, 1942 on ground of want of jurisdiction. Punjab High Court Single Judge allowed appeal April 5, 1944; Letters Patent Bench reversed and restored dismissal March 15, 1945. Raghunath Das filed Suit No. 80 of 1945 on August 21, 1945 for recovery of Rs. 7,310-11-3; decreed December 22, 1945; no appeal. Present Suit No. 239 of 1946 filed June 5, 1946 in Senior Subordinate Judge, Ambala; trial court decreed July 1, 1947. Punjab High Court in Civil Regular First Appeal No. 1/E of 1947 reversed and dismissed suit April 22, 1952. Supreme Court granted certificate December 19, 1952 and heard Civil Appeal No. 251 of 1954, allowed by judgment dated May 1, 1958.
Acts & Sections
- Indian Limitation Act, 1908: Article 49, Article 120, Section 14(1)
- Code of Civil Procedure, 1908: Order 2 Rule 2, Schedule II paragraph 20
