RATESWAR SINGH Vs. GULAB CHAND

JUDGEMENT

(1.) In this case the decree-holder obtained a decree for money against one Sureshwar Rai Singh, who was one of four brothers living jointly with his father Sureshwar Singh as a joint family governed by the Mitakshara Law. Sureshwar died during the life-time of his father leaving his sons, the appellants before us, and they succeeded by right of survivorship to the interest of their deceased father in the family properties. It does not appear that there was any execution taken out in the life-time of Sureshwar: after his death, however, the decree- holder applied for executing his decree against the appellants as the legal representatives of Sureshwar. They objected on the ground that the decree, not having been executed against their father could not be executed against them as they did not inherit anything from their father and had, therefore, no assets in their hands available to the decree-holder for the satisfaction of his decree. They further contended that the decree-holder should not be allowed to attach any specific share in the property and further that the matter of the liability of the appellants to the present execution had been decided in their favour on the 16 April 1904, and that that order is conclusive between the parties.

(2.) The Court below overruled the first plea and did not enter into the others : hence this appeal.

(3.) As regards the first point, we think that the decision of the Full Bench in the case of Arnar Chandra Kundu V/s. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J. 491 : 2 M.L.T. 207, is a binding authority and the appellants have been rightly brought upon the record as the legal representatives of their deceased father: so far there is no serious contention that the order is wrong. The contention is that the real decision in the Full Bench case does not go further and hold that the property that has survived to the sons can be pursued in execution for the realisation of the decree: and that such a view would contravene the views of their Lordships of the Privy Council in the cases of Suraj Bunsi Koer V/s. Sheo Pershad Singh 5 C. 148 : 6 I.A. 88 : 4 C.L.R. 226 and Madho Parshad V/s. Mehrban Singh 18 C. 157 : 17 I.A. 195.