JUDGMENT
1. In this case the decree-holder obtained a decree for money against one Sureshwar Rai Singh, who was one of four brothers living jointly with his father Sureshwar Singh as a joint family governed by the Mitakshara Law. Sureshwar died during the life-time of his father leaving his sons, the appellants before us, and they succeeded by right of survivorship to the interest of their deceased father in the family properties. It does not appear that there was any execution taken out in the life-time of Sureshwar: after his death, however, the decree-holder applied for executing his decree against the appellants as the legal representatives of Sureshwar. They objected on the ground that the decree, not having been executed against their father could not be executed against them as they did not inherit anything from their father and had, therefore, no assets in their hands available to the decree-holder for the satisfaction of his decree. They further contended that the decree-holder should not be allowed to attach any specific share in the property and further that the matter of the liability of the appellants to the present execution had been decided in their favour on the 16th April 1904, and that that order is conclusive between the parties.
2. The Court below overruled the first plea and did not enter into the others : hence this appeal.
3. As regards the first point, we think that the decision of the Full Bench in the case of Arnar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J. 491 : 2 M.L.T. 207, is a binding authority and the appellants have been rightly brought upon the record as the legal representatives of their deceased father: so far there is no serious contention that the order is wrong. The contention is that the real decision in the Full Bench case does not go further and hold that the property that has survived to the sons can be pursued in execution for the realisation of the decree: and that such a view would contravene the views of their Lordships of the Privy Council in the cases of Suraj Bunsi Koer v. Sheo Pershad Singh 5 C. 148 : 6 I.A. 88 : 4 C.L.R. 226 and Madho Parshad v. Mehrban Singh 18 C. 157 : 17 I.A. 195.
4. We do not think this contention is correct. In the case of Suraj Bunsi Koer v. Sheo Pershad Singh 5 C. 148 : 6 I.A. 88 : 4 C.L.R. 226, an attachment of the father’s interest under a decree based upon an universal debt was considered as so far charging the share of the father as to make it available to the decree-holder not with standing the death of the father thereafter leading to the succession of the sons by right of survivorship. If it were not for the attachment, the share of the father would not have been liable. In the case of Madho Pershad v. Mehrban Singh (3), the decree was against the uncle and that case has no bearing. The Full Bench case, therefore, does not contravene any principle laid down by the Privy Council; as regards the case of Peary Lal Binha v. Chandi Charan Sinha 11 C.W.N. 163 : 5 C.L.J. 80, that must be taken as overruled by the Fall Bench so far as, it decides anything inconsistent with the same. The Full Bench seems clearly to lay down that the son, who has succeeded by right of survivorship, may be brought in as a representative and execution carried on against the properties in his hands, coming by descent or survivorship, unless he can successfully raise the plea of illegality or immorality. On principle also, we do not see why this should not be so. All the pleas that would be open to the son in a fresh regular suit are open to him under Section 244 of the Civil Procedure Code with the regular incidence of appeals, as in a regular suit and there is no reason why the decree-holder should be thrown back upon a fresh suit when the shorter remedy causes no hardship to the debtors.
5. As regards the second plea, it is not contended that the share attached is not the legitimate chare of Sureshwar. If it is less than his legitimate share so much the better for the appellants; if it is more, it does not affect them in the least and the parties that may be affected, or other brothers of Sureshwar, are not before the Court so that any adjudication as to the share would be futile. As regards the third plea, the order on which it is based is not a part of the record. It is attempted to be filed now but we cannot allow this as if it were before the lower Court, the respondent might have shown that the order had been set aside on appeal or that there had been subsequent orders nullifying its effect. Indeed we are told that there have been subsequent orders allowing execution to go on against the appellants and these latter orders might stand as counter estoppels. We cannot, therefore, entertain the application of the appellants to receive the attested copy of the orders in support of his third plea. The appeal is, therefore, dismissed with ‘costs, 5 gold mohurs.
APPEAL NO. 167.
6. The question of estoppel by a previous order does not arise in this case. The other points are the same as in the above case. The appeal is dismissed with costs, 3 gold mohurs.
8. The Rules will stand discharged without costs.
