LACHMI PRASAD SINGH Vs. BASANT LAL

JUDGEMENT

(1.) This appeal is directed against an order by which the Court below has allowed execution of a decree passed against a Mitakshara father on the 14th January 1905, to proceed against his son. The son who is the appellant before us resisted the execution on the ground that the debt was of an immoral nature and, consequently, the decree based thereon was not enforceable as against him. The Subordinate Judge upon the evidence has held that the allegations of the son have not been established and that nothing has been shown to prove that the debt was of such a nature that the son was not liable to satisfy the demand of the creditor.

(2.) On the present appeal, the evidence has been placed before us and we see no reason to differ from the conclusion at which the Subordinate Judge has arrived. It has been argued, however, that the decree-holder is entitled to proceed only against that portion of the ancestral property in the hands of the son which upon partition would have represented the interest of the father, if a partition had taken place during his life-time. In support of this contention, reliance has been placed upon Section, 53 of the Code of 1908. That section, in our opinion, is of no assistance to the appellant; Section 53 merely provides that questions of this character are to be determined in execution proceedings and not by a separate suit; in other words, Section 53 gives legislative sanction to the decision of the majority of the Fall Bench of this Court in the case of Amar Chandra Rundu v. Sebak Chand Chowdhry 5 C.L.J. 491 : 34 C. 642 : 11 C.W.N. 593 : 2 M.L.T. 207. Whether the property in the hands of the son is liable to be seized in execution of a decree obtained against the father must be determined upon principles of Hindu Law. In so far as the case before us is concerned, there can be no doubt that the whole of the ancestral property is liable for the satisfaction of the judgment- debt. In support of this position, it is sufficient to refer to the decisions of their Lordships of the Judicial Committee in the cases of Muddun Thakoor v. Kantoo Lall 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56 and Nanomi Babuasin v. Modhun Mohun 13 C. 21 : 13 I.A. 1. The learned Vakil for the appellant has finally suggested that this view cannot be reconciled with the first principles of the Mitakshara School of Hindu Law. It would be fruitless to embark on such an inquiry, as the question has been authoritatively settled by a series of decisions of the Judicial Committee.

(3.) The appeal, therefore, fails and is dismissed with costs. We assess the hearing fee at three gold mohurs.