Kuppuswami And Anr. vs Rangai Goundan on 11 August, 1961

Madras High Court
Kuppuswami And Anr. vs Rangai Goundan on 11 August, 1961
Equivalent citations: AIR 1962 Mad 383, (1962) 1 MLJ 132
Bench: Srinivasan


(1) This appeal arises from the judgment, and decree of the learned District Judge, Coimbatore reversing that of the District munsiff, Coimbatore, dismissing an execution petition, The facts are these:

The respondent, the decree-holder, obtained, a money decree against one Nanjappa Gounden. This decree was passed on 11-12-1952. While this suit was pending, the sons of Nanjappa Gounder filed a partition suit, the preliminary decree in which was passed on 6-12-1962. It is not clear when this partition suit was filed. According to the learned District Munsif, it was filed on 1-6-1952, while according to the learned District Judge, it was filed on 21-7-1962. In any event, it is clear that a severance in status among the members of the joint Hindu family composed of Nanjappa Gounder, the judgment-debtor and his sons had become effective even before the date on which the decree-holder respondent obtained his money decree against Nanjappa Gounder.

The respondent filed E. P. No. 201 of 1953 in execution of his money decree. While it was pending, the moratorium Acts came into force so that the execution petition was closed on 9-1-1954. The Court made a specific order directing the attachment to subsist for one year from that date, that is, upto 9-1-1955. At this stage it may be mentioned that the decree-holder had obtained an attachment before judgment of the entire family properties. It was that attachment which was subsisting on the date of the filing of E. P. No. 201 of 1953 which was directed to continue for one year from 9-1-1954.

(2) The execution leading to the present appeal is E. P. No. 436 of 1958. It was filed long after 9-1-1955 upto which date alone the attachment was directed to Subsist by the order made in E P. No. 201 of 1953.

(3) It would appear that in or about December 1954, the judgment-debtor Nanjappa Gounder had been adjudicated an insolvent. Apparently, the one third share of the family properties belonging to the insolvent which vested In the Official Receiver was sold by him in auction and the respondent decree-holder himself became the purchaser. The present execution E. P. No. 436 of 1938 sought to bring to sale the remaining two third share of the family properties belonging, to the sons of Nanjappa Gounder. The objections raised by them which are now material were that the properties could not be brought to sale without attaching them, the earlier attachment before judgment having expired by 9-1-1955, and secondly, since the sons had become divided even before the date or the decree which was obtained against the father alone, it is not open to the decree-holder to proceed against the sons, shares in. execution and that his recourse should be only by way of suit.

(4) The learned District Munsiff accepted these contentions and dismissed the execution petition. An appeal was taken to the learned District Judge of Coimbatore who came to the conclusion that since the execution petition No. 201 of 1953 had only been closed for “statistical” purposes, notwithstanding the further direction of the Court that the attachment should subsist only for one year from 9-1-1954, on the revival of the execution petition, the attachment also should have been deemed to have been revived. He thought that a fresh attachment of the property was not necessary. On the other objection, he took the view that by reason of the attachment before judgment, which was of entirety of the family property, the sons should be deemed to have been prohibited from dealing with the property, as an attachment interdicts alienation. He thought that a partition amounts to alienation, or conveyance and that, therefore, even a partition should have been deemed to have been prohibited without the claim under the attachment being provided for. On this reasoning, he upheld the contention that notwithstanding the partition, the. decree-holder was entitled to proceed in execution against the sons shares without having to file a separate suit.

(5) It seems to me that on both questions the learned District Judge is in error. Attachments before judgment are provided for under Order XXXVIII of the Code. Rule 11 of this order states,

“Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff it shall not be necessary upon an application for execution of such decree to apply for re-attachment of the property.”

What this rule obviously, means is that when a party suing obtains a decree against the judgment-debtor, having under Rule 5 of Order 38 obtained an attachment of the property of the judgment-debtor before the passing of the decree, such attachment enures in faovur of the decree-holder and that before bringing the property to sale in execution of the decree it shall not he necessary for him to have the property attached again in the course of the execution. That is to say, the attachment before judgment serves in just the same fashion as an attachment in the course of execution would be. A vague suggestion was put forward by the learned counsel for the respondent, that such an attachment would continue till the satisfaction of the decree. No section or Order of the Code had been cited before me which lends support to this proposition. what to my mind the rule applies is that such attachment is treated as an attachment for the purpose of the execution proceeding and it is subject to such other orders as the executing court may make in relation thereto. Order XXI Rule 57 confers jurisdiction upon the executing Court to make a suitable order In relation to the attachment when it either dismisses an execution application or adjourns the proceedings to a future date. The rule reads “It shall state whether the attachment continues or ceases”. It is true that this rule commences by saying “Where an property has been attached in execution of a decree………….” and that in a case where a property has been attached before judgment, it cannot he said to have been attached in execution of a decree. Order XXXVII, Rule-11, in effect, equates such an attachment before judgement to an attachment mode in the execution of a decree and it should, therefore, follow that under Order XXI Rule 57, the Court is competent to make an order with regard to the attachment when it makes an order in relation to the execution application. The learned District Judge observed.

“…….. the question is whether, despite the order passed by the Court, that the attachment would subsist only for one year, the appellant is entitled to bring the properties to sale with. out a fresh attachment. It seems to me that the question depends more on the nature of the order passed. It the order does not amount to a dismissal, but only a disposal of the petition for purpose of statistics, the position is that when execution is revived, the attachment also must be deemed to have been revived as, ordinarily, the appellant would be entitled to continue execution proceedings from the point where it was interrupted by stay. So that, I am inclined to hold that a fresh attachment, of the property was not necessary in the circumstances of this case.”

I am not disposed, to agree with this reasoning. Even where an execution application is dismissed by the executing Court under Order XXI Rule 57. the Court is bound to make a suitable order with regard to the subsistence of the attachment or otherwise. Whether such a dismissal of the execution application is for statistical purposes or not, the order of the Court in so far as the attachment is concerned cannot he linked up with the scope of the order on the execution application. This order distinctly gives a definite life to the subsistence of the, attachment and thereafter the attachment ceases. I can see no provision of law where under an attachment which was brought to a termination by an order of Court can be revived. It follows therefore that before the property could be brought to sale, a decree-holder must necessarily ask for its attachment. Since the respondent has not done so his petition is feeble to be dismissed on that ground alone.

(6) The view of the learned District Judge that a partition amounts to an alienation is so obviously erroneous that the argument founded oil it in support of the decree-holder’s claim has to be rejected as unsound.

(7) It is almost unnecessary in the view that I have taken on the question of the attachment to consider the other aspect of the matter. But since it has been argued, I shall deal with it.

The learned counsel for the appellant relied upon a decision of the Supreme Court in Pannalal v. Mst. M. Naraini, in support of his contention that in a case like this, where on account of a pre-partition debt, a decree has been obtained against the father alone after a partition or a division in status has taken place, the creditor must necessarily file a separate suit against the sons in order to render them liable for the payment of the decree amount. It is not necessary to quote extensively from this decision. This decision held that even after a partition the sons are liable to pay pre-partition debts of their father, which are not immoral or illegal and for the payment of which no arrangement was made at the partition.

At page 559 (of SCR): (at p. 177 of AIR) their Lordships observed,

“The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the father or after his death? It has been held in a large number of cases–all of which recognise the liability of the son to pay the pre-partition debts of the father–that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached. The principles underlying these decisions seem to us to be quite sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding in the separated sons. In the second place, the power exercisable by the father of selling the interests of the sons for satisfaction of his personal debts comes to an end with partition. As the separated share of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit, the provision of S. 60 C.P.C. would operable as a bar to the attachment and sale of any such property in execution of a decree against the father.”

(8) Later they make a distinction in a case where a decree as passed against, the separated sons as legal representatives of a deceased debtor in respect of a debt incurred before partition. In dealing with the question whether such decree could be executed against the shares obtained by such sons at the partition, they observed,

“It is undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show, that they are not liable for debts under Hindu law; but this opportunity can certainly be given to them in execution proceedings as well. A decree against a father alone during his lifetime cannot he possibly executed against his was as his legal representatives. As we have said already, the decree against the father after the partition could not be taken to be a decree against the sons and no attachment and sale of the sons, separatist shares would he permissible under Sec. 60 C.P.C. The position, however, would be materially different if the sons are made parties to the suit as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands.”

It is seen therefore that where a decree has been passed against the father in respect of a pre-partition debt and such a decree is made against him in his individual capacity after the partition has been effected, that cannot be treated as a decree against the sons and the sons, separated shares would not be liable to he proceeded against on foot of such a decree in view-of the bar contained in S. 60 C.P.C. According to the learned, counsel for the appellant, the position in the present case is just what their 1ordhips of the Supreme Court have indicated. It is true that during the pendency of the money, suit laid against the father, the partition action was started by the sons on the date of the filing of the partition suit, a division in status had taken place and even the preliminary decree for partition had been passed before the date on which a decree was passed in the money suit. This was clearly a case of a decree against the father in respect of pre-preparation debt but which decree was made after the sons had become divided. That the shares had not been actually separated cannot make a difference, in the light of the principle laid down in this decision. In such a case, according to the decision of the Supreme Court, this decree cannot he treated as a decree against the sons and their shares proceeded against.

(9) For the respondent. 8. M. Jakati v. S. M. Borkar, has been referred to. This case however did not deal with the manner in which a decree against the father in a case of this kind could he worked out in execution against the sons. This decision reiterated the position that the sons are liable under the Hindu law for the debts of ‘their father Which are not Immoral or illegal, and that the whole estate is liable to be seized for the payment of such debts. Just as it is open to the father to alienate the whole coparcenary estate including the share of the sons, it is equally open to his creditors to proceed against it, but that is subject to the right of the sons to challenge the alienation or protest against their shares being proceeded against it but that is subject to the right of the sons to challenge the alienation or protest against their shares being proceeded against on proof of the sons to challenge the alienation or protest agaist their shares being proceed to lay down that the liability of the sons under the Hindu law is unaffected by partition because of the pious duty of the sons to pay the debt of the father unless it is for immoral or illegal purpose. They observed,

“Therefore even though the father’s power to discharge his debt by selling the share of his sons in the property may no longer exist as a result, of partition, the right of the judgment-creditor to seize, the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons.”

Though the decision laid considerable emphasis noon the pious obligation of the sons to discharge the debt of the father and stresses the fact that the pious obligation continues to exist even though the power of the father may come to an end as a result of the partition it did not deal with a case where the sons had divided from their father before a decree was obtained against the father. in such an event, the authority of the Supreme Court in , clearly stated that the sons’ shares could only be reached by the laying of a separate suit against them. The position was not touched by this later Supreme Court decision. What this decision lays down in such an event is that if the decree against the father had been obtained before the partition, the subsequent partition between the father and sons would not affect the decree-holder’s right to proceed against the sons, property, for the simple reason that the liability arising under the pious obligation would continue notwithstanding the partition, and that it was only open to the Sons to resist the proceedings against their property on proof that the debt itself has been contracted for immoral or illegal purpose. This decision did not, as far as I can see, hold that even in cases where the decree against the father was obtained after the division in status, the creditors would, on foot of such a decree, be enabled to proceed against the sons’ shares.

(10) I am accordingly of the opinion that the learned District Judge was in error in setting aside the order of the District Munsif dismissing the execution application. This appeal is allowed with costs.

(11) Appeal allowed.

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