VENKATEGOWDA Vs. BASAVAGOWDA

JUDGEMENT

(1.) This appeal arises from an application filed by Appellant under section 47, Civil Procedure Code, for an order that he is not liable and his properties should not be proceeded against for recovery of money due under a decree passed against his brother on the fact of a hypothecation bond. Subsequent to the decree, the Appellant's brother died and thereupon his sons and the appellant were brought on record as legal representatives in Execution Case No. 666 of 1934-35. The Appellant objected to his being treated as a legal representative but the objection was overruled by me Executing Court and the order of the Executing Court was confirmed in appeal with a remark hat the binding nature of the debt should be established in order to render Appellant's share in the mortgaged properties liable. In the application filed by Appellant it is alleged that the decree is not binding on him as it related to a debt which was not for family benefit or legal necessity. The decree-holder contended that the application is not maintainable, that Appellant is bound by the decree as it was passed in a suit filed against his brother as manager and representative of the family and the debt was incurred for the needs of the family.

(2.) On a consideration of the evidence adduced by the parties, the learned Munsiff held that to the extent of Rs. 616 the debt is binding on Appellant and that his half share in the properties is liable for payment of this sum with interest at 9 per cent from 25-1-1928 (the date of the hypothecation deed) up to 19-5-1932 when the suit was filed, with proportionate costs and current interest. The appeal against this order proved unsuccessful. Hence this second appeal.

(3.) It is not now disputed that the Appellant and his deceased brother were members of a joint-family to which the properties subject to the hypothecation belonged and that Appellant is entitled to a half share in the said properties. The decree under which the properties are to be sold for realisation of the amount due to respondent was passed ex parte as seen from the copy. Exhibit II.