SHEONATH PRASAD Vs. N V BALASWAMI

JUDGEMENT

(1.) These two appeals arise out of applications under Section 47 of the Code of Civil Procedure, and this judgment will govern both.

(2.) The respondents who are common in both the appeals are the decree-holders. They obtained an ex parte decree on 12-4-1950 jointly against the appellants in both the appeals in the Court of the Subordinate Judge of Mathurai in the State of Madras. That decree was transferred for execution to the District Judge of Gaya. In due course, after the execution was levied in the Court of the 1st Munsif, Gaya, being Execution Case No. 398 of 1953, two applications were filed under Section 47 of the Code objecting to the execution of the decree on various grounds -- one on behalf of Seonath Prasad and the other on behalf of Copal Prasad and Madan Murari Prasad. The former was registered as Miscellaneous Case No. 61 of 1955 giving rise to Miscellaneous Appeal No. 92 of 1956, and the latter was registered as Miscellaneous Case No. 62 of 1955 giving rise to Miscellaneous Appeal No. 138 of 1956. The suit was instituted by the respondents against the joint family firm, Babu Kali Prasad Lakshmi Prasad, and also against the partners constituting the joint family, namely, Sheonath Prasad (appellant in Miscellaneous Appeal No. 92 of 1956), Girdhari Prasad, Mani Babu, Gopal Prasad and Madan Murari Prasad, the last two being the appellants in Miscellaneous Appeal No. 138 of 1956, on the allegations that all the defendants were members of a joint Hindu family, of which Sheonath Prasad was the karta and manager of the family. He was sued in his personal capacity as well as in his capacity as the manager and karta of the joint family. The contention of the appellants in Miscellaneous Appeal No. 138 was that the decree was against the firm only and they were not personally liable for the payment of the decree and that their personal property was not liable to attachment and sale. Sheonath Prasad opposed the application for execution on the ground that the decree was void and without jurisdiction as the Subordinate Judge of Mathurai had no territorial jurisdiction over the subject-matter of the suit. He further urged that he was not personally liable for the payment of the decree.

(3.) In both the cases the learned Munsif rejected their contentions and held that the decree was executable both against the property of the firm and personally against the partners who had been individually served in the suit. He accordingly dismissed the applications and allowed the execution to proceed. The judgment-debtors preferred appeals against those decisions and the learned Subordinate Judge who heard them agreed with the learned Munsif that the decree was not void for want of jurisdiction and was executable both against the firm property and personally against the individual partners. He accordingly dismissed the appeals. Now, the judgment-debtors have come up in Second Appeal. I shall take up these appeals separately. Miscellaneous Appeal No. 138 of 1956.