CHHAKAURI MAHTON Vs. GANGA PRASAD

JUDGEMENT

(1.) This appeal is directed against an order by which the Court below has refused an application for execution of a decree for money. The circumstances under which the order in question was made have not formed the subject of controversy in this Court. On the 23rd March 1908, the appellants before us obtained a decree for money against one Shankar Lall and various other persons as defendants. On appeal to this Court by Shankar Lall and some of the other defendants, the decree was confirmed on the 27th May 1910. On the 5th August following, the decree-holders made an application for execution of the decree, whereupon an order was made for issue of a writ of attachment of the immovable properties of the judgment-debtors. On the 22nd September the return of the service of the writ of attachment was filed, but it is disputed whether the return gave an accurate version of the facts, and whether the writ was, as a matter of fact, properly served. Shankar Lall, however, entered appearance and took objection to the execution on grounds which are not material for our present purpose. On the 3rd December 1910, it was reported to the Court that Shankar Lall had died on the 13th November. The decree-holders then applied to bring on the record the legal representatives of the deceased judgment-debtor. Notice of the application was served upon them, whereupon they appeared and objected that the decree could not be executed against the properties in their hands, which they had obtained by survivorship. The decree- holders answered, first, that the legal representatives of Shankar Lall as his sons were liable to satisfy the decree as the debt was neither illegal nor immoral, and, secondly, that as the property had been validly attached during the lifetime of the deceased judgment-debtor, his right, title and interest, at any rate, could be seized in execution by the decree-holders. The Subordinate Judge overruled both these contentions and dismissed the application for execution upon the authority of the decision in Darbar Ala v. Khachar Oghad (1908) I.L.R. 32 Bom. 3487; at the same time lie distinguished the cases of Erasala Chetty v. Addepally Chetty (1908) I.L.R. 31 Mad. 472 Prayag Sahu v. Kasi Sahu (1910) 11 C.L.J. 599 and Peari Lal Singh v. Chandi Charan Singh (1906) 5 C.L.J. 80 : 11 C.W.N. 163 The decree-holders have now appealed to this Court, and on their behalf the decision of the Subordinate Judge has been challenged*on the ground that the debt was not tainted with illegality or immorality, nor with any such impropriety or infirmity as would remove it from the category of debts incurred Joy a Hindu father which a son is under an obligation to pay. It has been contended further that, in any view, as the attachment had been effected during the lifetime of the deceased judgment- debtor, it was compe, tent to the decree-holders to proceed at least against his right, title and interest in the hands of his sons. In answer to these contentions it has been argued by the respondents that the sum sought to be recovered was not a debt, as the deceased judgment- debtor was under no contractual obligation to pay it, and that even if it could be treated as a debt, it wras of a character which the sons of the deceased were under to obligation to discharge. Reference has been made by the appellants as well as the respondents to a number of judicial decisions, which, it has been suggested, cannot be easily reconciled. The answers to the questions raised must depend upon the texts as interpreted in the judicial decisions to which I shall presently refer.

(2.) According to the Institutes of Manu (VIII, 159), " money due by a surety, or idly promised, or lost at play or due for spirituous liquor or what remains unpaid of a fine and a tax or duty, the son (of the party owing it), shall not be obliged to pay" (Sacred Books of the East, vol. XXV, p. 282).

(3.) To the same effect is the text in the Institute, of Yajnavalkya (II, 47). The son shall not pay the, paternal (debts) contracted for wines, lust and gambling, or due on account of the unpaid (portion) of a fine or a toll or (on account of) an idle promise (Mandlik p. 205).