PADARTY BALAYYA Vs. DARAPUREDDI PARVATEESWARARAO AND ORS.

JUDGEMENT

(1.) THE plaintiff decree -holder is the appellant, and the appeal is against an order dismissing his petition for executing the decree against defendants 2 to 6 in O.S. No. 61 of 1932, on the file of the District Court, Ellore. The suit was filed, not only against the father, the first defendant, but also against his sons in respect of money due on a promissory note. A decree was passed not only against the father but against the sons defendants 2 to 4 also as against the joint family property in their hands. The decree was passed on the 28th August, 1933. The execution petition was filed against defendants 2 to 4 only and against defendants 5 and 6 who were born subsequent to the decree in the suit and who were added in their individual capacity in the execution proceedings. The first execution petition, E.P. No. 24 of 1934, was filed against the father and sons on the 6th January, 1934, and it was struck off on the 1st March, 1936, for want of bidders. On the 15th December, 1934, the first defendant was adjudged insolvent in I.P. No. 25 of 1934 on the file of the District Court, West Gosavari. On the 15th September, 1942, the adjudication was annulled and the property reverted to the insolvent. He died on the 26th January, 1941. E.P. No. 48 of 1944 was filed on the 22nd April, 1944, for attachment and sale of the 4/5th share of the Soint family property belonging to the sons only, because they had already filed the suit O.S. No. 701 of 1941 for partition and obtained a decree in respect of the 4/5th share of the joint family properties on 20th April, 1943.

(2.) IT was contended that the execution petition, E. P. No. 48 of 1944, was barred inasmuch as it was filed more than three years after the date of the final order passed on the previous application, E. P. No. 24 of 1934. It was argued for the decree -holder that the period from the date of the adjudication of the first defendant, the father, to the date of annulment should be deducted and if it was deducted, the petiti n would be in time. What was sought to be attached was the property in the hands of the sons and not of the father, and as it was the father who was declared insolvent and not the sons, the period could not be excluded. In law, the interest of the sons in the joint family properties does not vest in the Official Receiver on the adjudication of a joint Hindu father. Consequently it is only as against the interest of the father in the joint family properties that execution cannot proceed. Since the pendency of the insolvency proceeding would not be a bar to the execution of the decree as against the sons and their interest in the family properties, it was contended that this period could not be excluded. The learned subordinate Judge agreeing with this contention dismissed the execution petition as barred by time. The decree -holder has hence filed this appeal.

(3.) THE question was considered in Venkataranga Reddi v. : AIR1941Mad440 by a Bench of this Court in which they held: