JUDGMENT
1. This is an appeal from the appellate order of the Temporary Subordinate Judge of Nellore passed on appeal from an order of the District Munsif of Kanigiri on a petition filed by the third defendant in execution proceedings in Original Suit No. 96 of 1909 on the file of his Court. The third defendant is the son of the first defendant in the suit. The suit was against the father, the present petitioner and others for a declaration of the plaintiff’s right to certain items of immovable property. for recovery of possession of the same from them and for mesne profits. By the decree passed on the 22nd December 1910 all the defendants were ordered to put the plaintiffs in possession of certain items of the suit property and the first defendant was also directed to pay Rs. 370 for mesne profits and costs on the mesne profits. In execution of the decree against the first defendant for mesne profits and costs the entire house belonging to the first and third defendants was attached, and the third defendant claimed in the petition under appeal that his undivided half share was not liable to attachment on the ground that the decree for mesne profits and costs was limited against the first defendant, his father. The District Munsif held that his share was liable to be taken in execution for his father’s debts, they not being tainted by any illegality or immorality. The Temporary Subordinate Judge on appeal was of opinion that, although the primary liability of the third defendant to pay such debts undoubtedly existed, yet, as he had been a party to the suit and no decree had been passed against him, the decree was final as regards his liability and was a bar to the plaintiff’s claim.
2. It is contended before us that this view is correct and reliance is placed on Section 11, Explanation V, of the Civil Procedure Code, in that relief was claimed against the petitioner and not being granted should be deemed to be refused. We are of opinion that this plea is bad. The liability which was sought to be enforced in the suit was a suggested primary liability of the third defendant to the plaintiffs and his liability was negatived. The liability under which the plaintiffs are entitled to take the share of the third defendant in execution is the liability of a son to pay his father’s debts to the extent of his share in the family property based on religious and moral considerations which are fundamental in Hindu Law and well recognized by the Courts. It is from his duty to his father that the right of the creditor springs and not from any decree against the son personally. This is made clear by the Privy Council in the leading case of Suraj Bunsi Koer v. Sheo Persad Singh 5 C. 148 (P.C.) : 6 I.A. 88 : 4 Sar. P.C.J. 1 : 3 Suth. P.C.J. 589 : 4 C.L.R. 226 : 2 Shome’s L.R. 242; following an earlier decision of the Board in Muddun Thakoor v. Kantoo Lall 1 I.A. 321 at p. 333 : 14 B.L.R. App. 187 : 22 W.R. 56. On pages 170 and 171 their Lordships make clear the position. One quotation is sufficient: “Where joint ancestral property has passed out of a joint family under a sale in execution of a decree for the father’s debt, his sons, by reason of their duty to pay their father’s debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes.” There is no suggestion here that the fact of the primary liability of the sons having been negatived in a suit makes any difference; and on principle it is clear that this cannot be so. The error that the Subordinate Judge has fallen into is in thinking that the liability of a son arises but of some direct liability to a creditor. Such liability may exist and a suit may be brought to enforce it. But the fact that in a suit against the son such primary liability is negatived, does not affect his liability arising out of his duty towards his father. This view has been taken by the High Court of Allahabad in Shiam Lal v. Ganeshi Lal 28 A. 288. In that case the suit had been brought against father and son on a promissory note and was dismissed against the son as he was no party to it. In a subsequent suit by the son for a declaration that the decree obtained against the father could not be executed against his interest in the family property in view of the fact that the suit had been dismissed against him, the defence was held bad. The Court held that the original suit left the son exactly in the position in which he would have been if he had never been impleaded at all. We are in entire concurrence with this view.
3. The result will be that the order of the lower Appellate Court is set aside and the order of the District Munsif dismissing the claim-petition restored. The counter-petitioners will have their costs in this Court and the lower Appellate Court.
