GOPINATH JEW OF KUMARPUR Vs. BRUNDABAN MOHAPATRA

JUDGEMENT

(1.) In this appeal under the Letters Patent, judgment of learned Single Judge of this Court in First Appeal No. 86 of 1978 affirming the judgment and decree passed in Title Suit No. 151 of 1972 by the learned Subordinate Judge, Athagrarh (hereinafter referred to as the 'trial Judge') is under challenge.

(2.) THE facts leading to filing of the appeal essentially are as follows: Plaintiff -respondents in this appeal filed a suit for a declaration that their interest in the property of the joint family in which they were members is not affected by the sale of the property for recovery of damages in Money Suit No. 15 of 1957 and in Title Suit No. 16 of 1960. Their stand was that the decree for damages was against the defendants personally and joint family interest could not have been sold. The suit was decreed. Defendants took the stand in the suit and in the First Appeal that the decree passed against defendant Nos. 17 to 19 were not due to any criminal acts done and the plaintiffs having obtained benefit out of the deity's property which was in possession of defendant Nos. 17 to 19, who are their coparceners in joint family, their share in the scheduled property was also bound by the sale in execution. The plea was found untenable by learned Single Judge affirming similar view of the trial Court.

(3.) LEARNED Single Judge noted that there was no dispute that the decrees executed were not specifically against the plaintiffs, and therefore, the question for consideration was whether the plaintiffs would be bound by the decrees so that the sale in execution of the decrees would bind them. It was observed by the learned Single Judge that the unlawful occupation of land by a person and enjoyment of usufructs are illegal. Any liability for such illegal action would be personal and such liability would not bind the coparceners of a Hindu Joint Family. Similarly such acts of the Karta of a Joint Hindu Family will not bind the members. That would be in the nature of 'Avyavaharika debt'. Sons of Hindu debtors have no pious obligation to discharge such debt. It was noticed that though defendant Nos. 17 to 19 did not incur any debt, yet they were made liable for the amounts decreed on account of their unauthorised possession of the properties of the deity. Thus, the liability incurred for unauthorised possession is 'Avyavaharika debt''. In view of the aforesaid conclusion, the appeal was dismissed with observation that once the decretal amount became 'Avyavaharika debt', interest of the plaintiffs in the property sold would not be affected by sale of the Joint Hindu Family property. Purchasers having purchased the interest of a co -sharer would be deemed to be in joint possession of the properties purchased, since in execution of a decree the purchaser is entitled to the right of the judgment -debtor in the property and has no better right. Court cannot sell the interest of a person who is not liable under the decree.