A K N MURTHY Vs. B GANGAIAH

JUDGEMENT

(1.) In a suit for recovery of money filed against the principal borrower Krishnudu, his wife and sons were brought on record as his legal representatives after his death and a decree was passed in that suit after contest by them, in favour of the plaintiff for realization of the decretal amount from out of the assets of Krishnudu in the hands of the sons and wife. It is stated that when the property of Krishnudu was attached, his wife filed a petition claiming 1/5th share and that petition was allowed holding that her 1/5th share cannot be proceeded against in execution of the decree and that order became final. The executing Court ordered further steps for sale of the remaining 3/4th share, in the E.P. filed by the decree holder and the same is being questioned in this revision.

(2.) The contention of the learned counsel for the revision petitioners is that inasmuch as the decree is for realisation of the decretal amount from the assets of Krishnudu, and since Krishnudu had only 1/5th share in the attached property and since remaining 3/5th share in the property belongs to the sons of Krishnudu, their share cannot proceed against because the decree is only against the share of Krishnudu in the hands of the defendants (judgment-debtors).

(3.) I am not able to agree with the above contention of the learned counsel for the revision petitioners, because, there admittedly was no partition between Krishnudu and his sons and the property attached admittedly is the ancestral property. Since the decree obtained by the respondent is for recovery of money and since the revision petitioners are Hindus, in view of Section 53 CPC the decree can be executed against the ancestral co-parcenary property in the hands of the revision petitioners. Therefore, respondent can proceed against the share of the sons of Krishnudu also in the property attached, which is their ancestral joint family property, under the theory of pious obligation and so I find no grounds to interfere with the order under revision.