PERVELA MARKANDEYULU Vs. MUDUGANTI SURYANARAYANA

JUDGEMENT

(1.) One of the grounds on which the decree-holder proceeded against the properties in dispute was that it was self-acquired property of the father. This matter has not been gone into by the lower appellate Court in view of its decision that even if they are joint family properties they are liable to be reached in execution of the decree. The decision is canvassed 'by Mr. Bapiraju on the grounds (1) that the sons are not liable for the debts incurred by the father for a new trade ; and (2) that the suit having been dismissed against the sons after going into the merits of the case they cannot be made liable under the doctrine of pious obligation in execution of that decree. There is no force in the first contention but the second one seems to be substantial. However, for an effective determination of the main issue it is necessary to have a finding on the character of the property attached, namely, whether it was the self-acquired property of the father or the joint family property. The Agent to the Government, Andhra Pradesh, West Godavari, will submit a finding within a month after the reopening of the Courts.

(2.) All the contentions raised in the appeal will be dealt with by me on receipt of the finding. The lower Court will permit the parties to adduce, if necessary, evidence in support of their respective claims. Objections, if any, within two weeks thereafter. In pursuance of the above order, the Agent to Government, West Godavari, Eluru, has submitted the following finding: "From the evidence on record, I find that the entire E.P. schedule property must have been ancestral and not self-acquired by the father of the respondents ". This appeal coming on for final hearing after the return of the finding of the lower appellate Court upon the issue referred by this Court for trial, the Court delivered the following

(3.) The point involved in this Civil Miscellaneous Second Appeal is whether the rule of pious obligation is applicable even after the liability of the sons is put in issue and adjudicated upon. This question arises in the following circumstances :- The respondent filed a suit on the foot of a promissory note impleading not only the executant but the sons as well. The defence put forward on behalf of the sons was that as the debt was incurred for a new trade started by the father they were not liable in regard thereto. This issue was tried and decided in their favour and a decree was granted only as against the father. In execution of the decree the properties of both the father and the sons were proceeded against. It may be mentioned that between the date of the decree and the execution the father had died. It was contended on behalf of the sons that as the decision went against the decree-holder in regard to the liability of the sons their interest could not be realised in execution of the decree. This objection found favour with the trial Court which dismissed the E.P. On appeal this was reversed and the execution was directed to be proceeded with. The conclusion of the appellate Court is attacked before me.