# Case No. 390/88 Ghanshyam Narain v. Gauri Shanker Chaudhary and Case No

- **Citation:** (2001) 2 ILRA 249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/case-no-390-88-ghanshyam-narain-v-gauri-shanker-chaudhary-and-case-no-39877
- **Pages:** 5

## Text

2All] Shyam Sunder and others V. Firm Narain Das Bal Krishna Das and others
249
The application for recall of order is only
an abuse of the process of the Court. That
no fraud was practiced. It is further
contended that in the impugned order it
has been observed that miscellaneous
Case No. 390/88 Ghanshyam Narain Vs.
Gauri Shanker Chaudhary and Case No.
322/88 are pending in the court regarding
this Trust. That this fact was suppresed. It
is contended that these cases were not
relevant and, therefore, not required to be
disclosed. The documents of the same
have been filed and it is argued that in suit
no. 322/88 is for injunction against the
opposite party in which injuction order
was issued on 26.09.88 (annexure 14 to
the affidavit) against the opposite party
restraining
him
from
working
as
Managing Director of the Trust. That the
said order still subsists, as appears from
annexure no. 15 to the affidavit. It is
contended that these orders are in favour
of the applicant and therefore there was
no necessity of disclosing of the suit and
these orders. It is further contended that
Suit No. 390/88 was filed against the
father of the applicant, who has died.
That, therefore, there was no question of
disclosing that case. That, therefore, no
fraud was practiced.

14. I have considered the arguments.
In my opinion the contention is not
correct.
The
applicant
should
have
disclosed regarding these cases as the
same are regarding the same trust. It is not
disputed that suit no. 390/88 was for the
removal of the father of the applicant as
Managing Trustee. The father of the
applicant has died for whose removal suit
was filed. The applicant claim the right of
Managing Trust on the basis that his
father was Managing Trustee. Therefore,
it was incumbent on him to disclose
regarding the Suit No. 390/88. The Suit
No.
322/88
is
also
regarding
the
Management of the said Trust and,
therefore, it should also be disclosed.

15. It may also be mentioned that by
order, dated 21.07.83 passed in O.S. No.
4127/83 the District Judge, Varanasi
ordered for appointment of the opposite
party as a trustee of the disputed trust.
Therefore, the opposite party was not an
outsider but was the Trustee of the Trust
is dispute. It was, therefore, incumbent to
the applicant to implead him as party in
this case, without impleading him the
order regarding Managing Trustee was
obtained. Thus the material facts were
surpressed and fraud was practiced.

16. Considering these circumstances,
I am of the view that the order was rightly
recalled by the learned District Judge,
Varanasi. The matter has not been finally
decided. It has been sent to the IVth Addl.
District Judge, Varanasi for decision
alongwith the other pending cases. There
is no reason to interfere in the impugned
order.

17. The revision is without merit and
is hereby dismissed.

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By the Court

1. Both these appeals are connected
arising out of the common judgement and
therefore they are being disposed of by
this judgement.
2All] Shyam Sunder and others V. Firm Narain Das Bal Krishna Das and others
251
2. The facts giving rise to these
appeals are as follows :

The suit no.326 of 1956 was filed by
the M/s Narain Das Bal Krishna Das
against the firm Raja Ram Chhannoo Lal
and its partners Uma Shanker Prasad and
Jagar Nath Prasad for recovery of Rs
1,530/-. The suit was decreed ex-parte on
08.5.1957. The decree was transferred for
execution of Munsif Havali, Varanasi
where on 14.10.1957 execution case
no.192 of 1957 was registered. The
disputed land was attached on 13.11.1957.
The plots were put to auction sale on
20.03.1958 and were purchased by decree
holder- plaintiff himself.

3. Thereafter on 17.04.1958 Uma
Shanker
partner
of
the
firm
filed
objections under order 21Rule 90 C.P.C.
which
were
rejected
in default on
26.07.1958. The judgment debtor again
filed objections under Order 21 Rule 90
C.P.C. on 30.08.1958 which were rejected
on 30.08.1958 on the ground that identical
objections have already been rejected.
Thereafter the sale was confirmed and the
decree
holder
purchaser
obtained
possession on 16.05.1959.

4. Objections under Section 47
C.P.C. were filed by Shyam Sunder, Raj
Kumar and Vimal Kumar, sons of Uma
Shakner on 02.09.1964 (Misc. Case No.
113 of 1964) alleging that they were
minors at the date of the sale. That there is
an ancestral trading firm carrying out the
joint business in the name and style of
firm Raja Ram Chhannoo Lal. That the
property of the minors have been illegally
sold during their minority and they have
been dispossessed. The objections were
also filed by the judgment debtors under
section 47 C.P.C. On 27.01.1965 the
objections of Shyam Sunder, Raj Kumar
and Vimal Kumar were converted in to
O.S. No.65 of 1965. The issue no.4 was
framed in that suit and it was held that the
suit is entertainable in the revenue court
and therefore the plaint was returned for
presentation to proper court, Against that
order Civil Appeal No.288 of 1968 was
filed, in which the suit was again
converted into objection under section 47
C.P.C. The objections filed by Uma
Shanker and Arun Kumar, judgment
debtors were registered as Misc. Case no.
108 of 1971 under section 47 C.P.C. Both
these objections under section 47C.P.C.
(Misc. Case no.108/71 and Misc. Case
no.113/64) were dismissed by common
order on 13.01.1973. Against that order
two civil appeal no.146 of 1973 and 148
of 1973 were filed. The appeals have been
dismissed by a common judgement dated
07.02.1974. Against that judgement the
present second appeals have been filed.

5. I have heard Sri Sankatha Rai,
learned counsel for the appellants in
Second Appeal No.1331 of 1974 and Sri
Aditya Narain, learned counsel for the
appellants in Second Appeal No.1238 of
1974 and Sri R.N. Singh and Sri S.N.
Singh learned counsel for the respondents
and have gone through the record.

6. In Second Appeal No.1331 of
1974 the argument advanced by the
learned counsel for the appellants is that
the land in suit was sirdari land at the date
of auction and therefore could not have
been transferred by sale or otherwise as
provided by U.P.Z.A. & L.R. Act Even
transfer in auction sale by the court is
void. The learned counsel in support of
the argument has referred to khatauni of
1356 fasli, in which Uma Shanker have
been recorded as occupants Khatauni
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
252
no.1367 fasli has also been filed in which
they have been recorded as Sirdari in
Shreni II. The khatauni of 1359 fasli has
also filed. It is contended that this
document show that Uma Shanker and
Jagar Nath were occupancy tenants of the
land in dispute and were not having
transferable rights and therefore the sale is
void As against this it is contended by the
learned counsel for the respondents that
there is consistent finding of both the
courts below that the land was a grove
land and there fore Uma Shanker and
others where having transferable rights. It
is contended that the evidence on this
point was considered in detail by both the
courts below and it is a finding of fact
which can not be challenged in the second
appeal.

7. I have gone through the
judgements of the court below and it
appears that various document on record
were considered in detail and thereafter a
finding has been recorded that the land
was a grove land. The learned counsel for
the appellants has only referred to the
above extract of khataunis, but could not
pointed out any illegality in the finding of
the lower court that the land was a grove
land which is based on the consideration
of entire evidence and documents on
record. It may also be added that this fact
has not been disputed that grove existed
over the disputed land at the spot.
Therefore, I have no reason to interfere in
the finding of the court below that the
land in dispute was a grove land in which
the tenure holder were having transferable
rights. In view of the above the appeal
no.1331 of 1974 is without merit and is fit
to be dismissed. No. substantial question
of law arise for decision in this appeal.

8. Now coming to the Second
Appeal No.1238 of 1974. It may be
mentioned that in this case the objections
were filed by Shyam Sunder, Raj Kumar
and Vimal Kumar sons of Uma Shanker.
They were not parties to the suit and
therefore there objections under section
47 C.P.C. were not maintainable and were
wrongly entertained. Clause (1) of Section
47 C.P.C. reads as follows:

"Section 47 (!): All questions arising
between the parties to the suit in which
the
decree
was
passed
or
their
representatives,
and
relating
to
the
execution, discharge or satisfaction of the
decree, shall be determined by the Court
executing the decree and not by a separate
suit."

9. In view of the above provision the
objection of Shyam Sunder and others,
who were not parties to the suit are not
maintainable.

10. In this connection learned
counsel for the appellants, Shyam Sunder
and others has referred to the various
provision of Hindu Law. It has been
contended that ancestral business was of
the Joint Hindu Family. Therefore, the
members of the Joint Hindu Family are
also partners in the business. That the suit
was filed against the firm Raja Ram
Chhannoo
Lal
which
was
carrying
ancestral business. The present appellants
being members of the Joint Hindu Family
were also partners in the business of the
said firm and therefore they shall be
considered to be parties in the suit and the
decree as the decree is against the firm,
Raja
Ram
Chhannoo
Lal.
Learned
Counsel has referred to Section 234,240
and 251 and certain other provisions of
Mullas, Hindu Law, On scrutiny of these
2All] Bal Krishna V. Ramanand Dixit and another
253
provisions it appears that were the joint
family firm is carrying on business, the
members of Joint Hindu Family shall also
be deemed to be partners in the business.

11.

Learned counsel for the
appellants have also referred to the case
of Gaya Din through L.R.s and others
Versus
Hanuman
Prasad,
2001(92)
R.D.79 decided by the Apex Court. It was
observed in this case "that the members of
the joint family collectively own the
coparcenary property. Each member has
an interest in such property, though his
interest becomes definite on partition. Till
then, it is an undivided interest. The view
expressed in Mahabir Singh and other
cases mentioned above, that the members
were not the tenants of the holding
because they had no interest in it, is, with
respect, fallacious. In law, the members of
the joint Hindu family together become
the tenants of the holding. The coparcenary body as such and as an entity
apart from its members, does not own
property. The property does not vest in
the co-parcenary but in its members
though collectively."

12. I have considered the provision
of law referred to by the learned counsel.
However under these provisions the
members of joint Hindu family does not
become entitled to file objections under
section 47 C.P.C. Section 47 C.P.C. is a
special provision regarding objection in
the execution by the parties to the suit. It
can not be extended to the persons, who
are not parties to the suit on the basis that
they are also members of joint Hindu
family. This provision can not be availed
by them and the only option for them was
to file a separate suit.

13. The objections against the
execution were already filed by the other
partners. Therefore, separate objections
by the appellant of Second Appeal
no.1238 of 1974 were not maintainable
and were wrongly entertained. They are
not entitled to file separate objection
under section 47 C.P.C. not being parties
to the suit.

14. In view of the above the
objections by Shyam Sunder and others
were wrongly entertained. Therefore, the
objections
were
not
maintainable.
Therefore, the appeals preferred by them
is also liable to be dismissed.

Both the appeals are dismissed with
costs. The stay orders, if any, are hereby
vacated.

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