PANNALAL Vs. MT NARAIN

JUDGEMENT

(1.) This appeal is on behalf of the Judgment debtor in a proceeding for execution of a money decree and it is directed against the Judgment of a Letters Patent Bench of the Punjab High Court dated 18-5-1949, by which the learned Judges affirmed in appeal, a decision of a single Judge of that Court dated 29-10-1946. The original order against which the appeal was taken to the High Court was made by the Senior Subordinate Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections preferred by the appellants under S. 47. Civil P. C.

(2.) To appreciate the contentions that have been raised in this appeal, it would be necessary to give a short narrative of the material events in their chronological order. On 30-9-1925 Baldev Das, the father of the appellants, who was, at that time the manager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour of Mt. Naraini, the original respondent 1, and another person named Talok Chand, by which certain movable properties belonging to the joint family were hypothecated to secure a loan of Rs. 16,000. On 16-4-1928 the appellants along with a minor brother of theirs named Sumer Chand filed a suit - being Suit No. 23 of 1923 - in the Court of the Subordinate Judge of Shahjahanpur against their father Baldev Das for partition of the joint family properties. The suit culminated in a final decree for partition on 20 7-1928 and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.

(3.) After hearing the parties and the evidence adduced by them the Subordinate Judge came to the conclusion that there was in fact a partition between Baldev Das and his sons in the year 1928 and as a result of the same, the properties, which were attached at the instance of the decree holder, were allotted to the share of the sons. The decree sought to be executed was obtained after the partition, but it was in respect of a debt which was contracted by the father prior to it. It was held in these circumstances that the separate share of the sons which they obtained on partition was liable under the Hindu Law for the prepartition debt of their father if it was not immoral and under S. 53, Civil P. C., the decree-holder was entitled to execute the decree against such properties. As no point was raised by the objectors in their petition alleging that the debt covered by the decree was tainted with immorality, the objections under S. 47, Civil P. C., were dismissed. The objectors thereupon took an appeal to the High Court of East Punjab which was heard by Rahman J. sitting singly. The learned Judge dismissed the appeal and affirmed the decision of the Subordinate Judge. A further appeal taken to a Division Bench under the Letters Patent was also dismissed and it is the propriety of the Judgment of the Letters Patent Bench that has been challenged before us in this appeal.