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TMI Blog1958 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... rties including agricultural 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 on 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. It is alleged that the respondent Gokul Chand had disposed of part of the G.P. Notes and that at the date of the references to arbitration G.P. Notes of the value of ₹ 26,500 only were held by Gokul Chand, as the Karta of the family. 3. On June 21, 1936, the arbitrator made an award which was signed by both the brothers statedly in token of their acceptance thereof. The award was registered on July 28, 1936. By that award the arbitrator divided the immovable 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 ₹ 26,500, which then stood in the name of Gokul Chand, G.P. Notes of the value of ₹ 13,300 should be entered into the names of Gokul Chand and Mst. Daropadi and the remaining Notes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the balance with interest remaining due to him out of the said sum of ₹ 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. 7. 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 he ordered to transfer G.P. Notes of the value of ₹ 13,200 out of the G.P. Notes of the value of ₹ 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. Notes were set out in the prayer. There was an alternative prayer that Gokul Chand be ordered to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 section 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 O. 2, r. 2, of the Code of Civil Procedure but allowed the appeal and dismissed the suit as barred by limitation. 9. 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 ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 [1893] L.R. 20 I.A. 155. 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 circumstances 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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 the Division Bench reversed the decision of the Single Judge who had entertained the execution proceeding. In our opinion Raghunath Das is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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