MINAKSHIACHI Vs. CHINNAPPA UDAYAN AND SADASIVA UDAYAN

JUDGEMENT

(1.) If the house sought to be sold is property charged by the decree with maintenance, the property can be sold in execution of the decree even though the respondent was not made a party to the decree, since there can be no contention that the debt, was either illegal or immoral, and the decree is not merely a personal decree against the father alone as in Muttia V/s. Virammal I.L.R. 10 Mad. 283 at p. 287 but a decree against the representatives of the family directly creating a charge. The concluding part of the judgment in Muttia V/s. Virammal I.L.R. 10 Mad. 283 at p. 287 is an authority for holding that such a decree can be executed against the sons of the defendants, though not actually made parties.

(2.) If, however, the property was not charged by the decree, the son, under the same authority, may be entitled to object to property taken by him by right of survivorship being proceeded against in execution.

(3.) The District Judge has not definitely found whether the property attached was property comprised in the decree. We must therefore ask for finding on this point. Evidence may be taken on both sides.