TULJARAM RAMACHANDRA Vs. NIJAGUNAPPA BASALINGAPPA

JUDGEMENT

(1.) The 1st respondent-decree-holder had filed Sp1. CS.No,.8 of 1962 against Respts.2 and 3 as well as against the appellants', who are judgment debtors 3 to 6. A decree was passed against judgment debtors 1 and 2 (Respts.2 and 3) only for recovery of a sum of Rs.16,031-18 together with future interest and proportionate costs of the suit. The suit as against judgment-debtors 3 to 6 (appellants) came to be dismissed. The decree holder sought to proceed against the shares of the appellants in the properties of the joint family alleging that judgment debtor 1 is the father of judgment-debtors 3 to 6, that the properties sought to be attached are the joint family properties of the judgment-debtors and that the judgment debtors 3 to 6, being the sons of judgment-debtor 1, are liable under the pious obligatiton to discharge the decretal debt and that their shares in the joint family properties are liable to attachment and sale. The judgment debtors 3 to 6 resisted the claim of the decree-holder contending that the claim is barred by res judicata since the suit had been dismissed against them. The execution Court rejected the contentions of judgment-debtors 3 to 6 holding that the shares of the said judgment-debtors in the, joint famliy properties are liable to be proceeded against. That order has been confirmed by the lower appellate Court. The judgment debtors 3 to 6 have filed the present second appeal.

(2.) In the suit it was alleged by the decree holder that the 1st judgment debtor is the father of judgmentrdebtors 3 to 6 that they constitute a joint Hindu family of which the father was the manager, that they were carrying on their famiy business under the name and style of ' Siddeswara Oil Mils at Gadag, that all the defendants enjoyed and received the benefit of the dealings with the plaintiff in that suit. Judgment-debtors 3 to 6 in the suit pleaded that the oil mill business is the new and exclusive business of their father and that therefore they were not liable for the suit claim. The Court held that the oil mill business was entirely a new business and that the suit claim is binding only on defendants 1 and 2 (judgment-debtors 1 and 2) and not binding on defendants 3 to 6 i.e., judgment-debtors 3 to 6, that only defendants 1 and 2 are liable for the suit claim, and that the interest of defendants 3 to 6, in the joint family properties cannot be attached.

(3.) It is not the case of the appellants that the debt in question is an Avyayaharika de,bt. What is contended by them is that since they were made parties to the suit and as the Court held in that suit that their shares and interest in the joint family properties are not liable for attachment, that it is not now open to the decree-holder to seek to proceed against their shares and interest in the joint family properties in execution of the said decree and that the decree holder's claim is barred by res judicata. The attachment before judgment of the shares of the appellants and their interest in the joint family properties was ordered to be raised in that suit. That was in pursuance of the finding of the Court that the oil mill business is a new business and that the shares and interest of the appellants in the joint family properties are not liable for the suit claim.