THIRUVENDIPURAM DORAIRAJAM NAYANIM VARU Vs. VEMASWAMI RAMA NAIDU

JUDGEMENT

(1.) A fairly simple question has been raised by the appellants, although it has been argued with considerable vehemence by their learned Advocate. A mortgage was executed by a mother and two sons; and mortgage decrees, preliminary and final, were passed against them. The hypotheca was brought to sale; but as it was insufficient to discharge the mortgage debt, an application was put in under Order 34, Rule 6, Civil P. C., for a personal decree against the two sons. Amongst other pleas, they stated that various payments had been made and that nothing remained due. Their objections were overruled and a personal decree was passed against the sons for the amount that the plaintiff claimed. In due course, execution was taken out; but by the time with which we are concerned both the sons had died and their legal representatives brought on record. The latter raised no objection to being brought on record as legal representatives; but when the decree was transmitted to another Court for execution against the family property of the two judgment -debtors and their legal representatives, objection was taken that no debt was due and that therefore the property was not liable for the discharge of a debt that had at no time been in existence. The lower Court held that an executing Court could not go into this question and so ordered execution to proceed. The legal representatives have appealed.

(2.) THE general line of argument in the lower Court on behalf of the legal representatives seems to have been that their fathers - -two of the three mortgagors - -were not really debtors at all but mere sureties for their mother. That, however, would not mean that any decree passed against them would not be binding on their sons. Two other points have been put forward here. One is that since the sons were sureties for their mother and then the mother, the principal debtor, was exonerated, the sons, who were merely sureties, would not be liable. This point was not raised in the Court below; and as it depends on the ascertainment of facts, we cannot allow it to be argued here. The second point is the only one that requires our consideration here. The contention now is that the Court that passed the personal decree determined wrongly the question whether the fathers had discharged the mortgage debt by various payments made by them. These allegations, as already stated, had been put forward by their fathers and had been negatived by the learned Judge. The appellants are therefore attacking the correctness of the decree. Since they were not parties to the decree (unless it can be said that as far as these questions are concerned, their fathers represented them), they are entitled to have this question reagitated; but the question is whether the lower Court was right in holding that the question could be considered only in a separate suit filed by the legal representatives or whether that question can be gone into in execution proceedings.

(3.) THE learned Advocate for the appellants seek to distinguish these eases as ones dealing with property decrees and not money decrees; and he particularly relies on a sentence towards the end of Hamidgani v. Ammasahib, I. L. R. (1942) Mad. 271 : A.I.R. 1941 Mad. 898 which runs: 'There are decisions of this Court to the effect that in execution proceedings arising out of money decrees questions relating to the property attached must be decided in execution proceedings and not by a separate Suit,' The learned Advocate did not however go on to complete the sentence, the latter portion of which was: 'but this is an entirely different matter because the correctness of the decree is not called into question.' The learned Advocate has cited a very large number of cases to which only the briefest reference is necessary, to the effect that if a money decree is obtained against a father and it is sought to be executed against the joint family property of the father and the sons, the sons are entitled to show in the execution proceedings themselves that the debt is not binding on them. We have not called upon the learned Advocate for the respondents to reply; but he has indicated to us that he does not dispute the correctness of this proposition; and indeed we have no doubt on this point ourselves. But the difference between the cases referred to by the learned advocate for the appellants and the case that is now under consideration before us is that in the present case, unlike the cases cited, the legal representatives are questioning the correctness of the decree itself. As we have stated above, they say that the Court which passed the personal decree against the father erred in passing the decree it did and that the Court should have found that the sum which the plaintiff claimed remained due to him had been already discharged by the various payments alleged by their fathers in the personal decree proceedings to have been made by them. Those findings cannot be attacked in execution proceedings, as very clearly pointed out by Abdur Rahman J. in Lakshmadu v. Ramudu, I. L. R. (1940) Mad. 123 : A. I. R. 1939 Mad. 867.