KUPPUSWAMI Vs. RANGAI GOUNDAN

JUDGEMENT

(1.) THIS appeal arises from the judgment, and decree of the learned District Judge, coimbatore reversing that of the District munsiff, Coimbatore, dismissing an execution petition, The facts are these: the respondent, the decree-holder, obtained, a money decree against one Nanjappa Gounden. This decree was passed on 11-12-1952. While this suit was pending, the sons of Nanjappa Gounder filed a partition suit, the preliminary decree in which was passed on 6-12-1962. It is not clear when this partition suit was filed. According to the learned District munsif, it was filed on 1-6-1952, while according to the learned District judge, it was filed on 21-7-1962. In any event, it is clear that a severance in status among the members of the joint Hindu family composed of Nanjappa Gounder, the judgment-debtor and his sons had become effective even before the date on which the decree-holder respondent obtained his money decree against Nanjappa Gounder. The respondent filed E. P. No. 201 of 1953 in execution of his money decree. While it was pending, the moratorium Acts came into force so that the execution petition was closed on 9-1-1954. The Court made a specific order directing the attachment to subsist for one year from that date, that is, upto 9-1-1955. At this stage it may be mentioned that the decree-holder had obtained an attachment before judgment of the entire family properties. It was that attachment which was subsisting on the date of the filing of E. P. No. 201 of 1953 which was directed to continue for one year from 9-1-1954.

(2.) THE execution leading to the present appeal is E. P. No. 436 of 1958. It was filed long after 9-1-1955 upto which date alone the attachment was directed to subsist by the order made in E P. No. 201 of 1953.

(3.) IT would appear that in or about December 1954, the judgment-debtor nanjappa Gounder had been adjudicated an insolvent. Apparently, the one third share of the family properties belonging to the insolvent which vested In the official Receiver was sold by him in auction and the respondent decree-holder himself became the purchaser. The present execution E. P. No. 436 of 1938 sought to bring to sale the remaining two third share of the family properties belonging, to the sons of Nanjappa Gounder. The objections raised by them which are now material were that the properties could not be brought to sale without attaching them, the earlier attachment before judgment having expired by 9-11955, and secondly, since the sons had become divided even before the date or the decree which was obtained against the father alone, it is not open to the decree-holder to proceed against the sons, shares in. execution and that his recourse should be only by way of suit.