VISHWANATH PRASAD PATHAK Vs. PARKASH CHANDRA AND ANR

JUDGEMENT

(1.) This is a plaintiff s appeal arising out of a suit, for a declaration, that the property which has been attached in execution of the respondents decree is liable to be attached and sold in execution of that decree. The plaintiff holds a money decree against the contesting defendant s father. The Court below has found that the property is joint and ancestral and that the debt borrowed by the defendant s father had been borrowed for an immoral purpose, and was, therefore tainted with illegality. It is;^ therefore, quite clear that the son is in no way bound to pay such a debt. At the same time it is equally clear that the father cannot repudiate his liability to pay the amount which he borrowed. Both the father and the son are alive. In these circumstances there appears to be nc bar against the attachment of the father s interest in the joint property in execution of the decree which has been obtained against him. On the other hand, the defendant s share must be free from attachment. The first Court decreed the whole suit, but the Appellate Court has dismissed the whole claim.

(2.) It seems to us that the finding of the lower Appellate Court that the debt borrowed by the contesting defendant s father was tainted with immorality must be accepted in second appeal. But the lower Appellate Court should not have dismissed the whale claim because the plaintiff-decree-hoider was certainly entitled to attach the father s interest, whatever that may be in the joint property and to hive it sold. We accordingly allow this appeal in part and modifying the decree of the lower Appellate Court decree the plaintiff s claim with a declaration that he is entitled to attach and sell the undivided interest of the father, Amar Nath in this joint property and dismiss the claim as regards any other remaining interest. We direct that the parties Should bear their own costs in all Courts.