JANAKI Vs. RAGHAVAN

JUDGEMENT

(1.) The appellants herein are claimants in E. P. No. 101 of 1981 in O. S. No. 335 of 1975 on the file of the Munsiff's Court, Kozhikode-11. They filed an application under O.21 R.58 of the Code of Civil Procedure and prayed for release of 4 items of petition scheduled properties from attachment and sale in pursuance of a personal decree debt contracted by the 2nd respondent. The appellants are wife and children of the 2nd respondent. According to them, the petition scheduled properties are joint family properties of the appellants and the 2nd respondent and so cannot be sold in satisfaction of a personal debt contracted by the 2nd respondent. The courts below negatived the plea of the appellants. Hence this appeal.

(2.) It is conceded that the parties are Thiyyas and are governed by Hindu Mitakshara Law. Claimants 1 to 5 are females. Claimant 6 is a male and his right has been upheld by the courts below. Claimant No. 7 was born subsequently on 21-5-1976.

(3.) The only plea raised by counsel for the appellants, Mr. Ramkumar at the time when the appeal came up for admission was that the undivided interest of the 2nd respondent in the joint family properties cannot be attached and in that view of the matter the proceedings by way of attachment and sale of the properties are illegal. This point was not specifically raised in the courts below. I should state, that the appellants cannot be allowed to raise this plea for the first time at the second appellate stage. Even so, on the merits also, the appellants have no case.