KRIAHNAMMTHY Vs. PATTUSWAMY

JUDGEMENT

(1.) The judgment-debtors are the appellants. Their father was the sole defendant in O.S.No.258 of 1978 on the file of the Sub-Court, Chidambaram. Pending the suit, he passed away and the present appellants were impleaded as the legal representatives of the deceased defendant. Ultimately, the suit came to be decreed against the defendants as against the assets of the deceased in their hands. In execution, the respondent decree-holder brought the entire suit property belonging to the joint family of the appellants for sale, of course after attachment. The appellants came forward with E.A.No.122 of 1984 in this suit, and are claiming that the attachment should be raised on the basis that the attachment in respect of one half share in the suit . property is not proper. Their contention is, that the property belonged to the joint family and, therefore, they themselves are entitled to one half share and that such half share cannot be proceeded against in execution in O.S.No.258 of 1978, particularly when the decree directed the decree-holder to proceed against the assets of the deceased in their hands. This contention did not prevail with the learned District Judge, though it weighed with the Sub-Court, Chidambaram. Consequently, E.A.No.122 of 1984 was dismissed. It is this order of the District Judge, Cuddalore, that is challenged in this appeal.

(2.) It is not in dispute that the suit property was a joint family asset in the hands of the deceased judgment-debtor, the appellants herein and his other sons. It is true the decree directed that the decree-holder should proceed against the assets of the deceased in the hands of the judgment-debtor. The crucial question is what is the asset of the judgment-debtor. As regards the Manager of a Joint Hindu Family, the assets would mean not only his undivided interest in the property but also his right to alienate the interest of other members in the coparcenary property. At this juncture, it is relevant to note section 53, CODE OF CIVIL PROCEDURE, 1908 which reads as follows: