MUTHAYYA CHETTIAR Vs. ARRMVARLAKSHMANAN CHETTIAR

JUDGEMENT

(1.) THE question which arises in this Second Appeal which if decided against the appellant would be conclusive is whether an attachment before judgment of a co parcener's interest when not followed by a decree during the said co-parcener's life-time operates to defeat the right of survivorship. This question is governed by direct authority in this Court Ramanayya V/s. Rangappayya 17 M. 144. It was a decision of the year 1893. Not only has no doubt been since cast upon that decision in this Court but the view there taken has been reinforced by the converse case which is illustrated by the decisions in Muthusami Chetty v. Chinnammal 24 Ind. Cas. 320 : 26 M. L. J. 517, and Sankaralinga Mudaliar v. Official Receiver of Tinnevelly 92 Ind. Cas. 504 : 49 M. L. J. 616 : (1925) M. W. N. 832 : A. I. R. 1926 Mad. 72. THEse latter decisions are to the effect that where the co-parcener whose interest is attached before judgment survives the decree, the attachment takes precedence over the right of survivorship : in other words, the creditor can avail himself of the attachment in order to realise his decree as against the surviving co-parceners, This being the state of authority in this Court on this question, learned Counsel for the appellant has addressed to me an argument founded upon the grounds stated in the earliest case Ramanayya v. Rangappayya 17 M. 144, to show that the reasoning is not quite logical and is not supported by the decision which is referred to there, namely Sadayappan v. Ponnanna 8 M. 554. On these grounds he asks me to post this case before a Bench. I do not think I should be justified at this distance of time in attempting to examine the logic of the decision in Ramanayya V/s. Rangappayya 17 M. 144, or to say whether the decision in Sadayappan V/s. Ponnanna (4) does really support the proposition which is founded upon it. I think I should not be justified in attempting to cast a doubt upon a doctrine which has been accepted in this Court for practically 40 years. It is, I think, very important that in such matters, whatever the ultimate decision of the Courts might be, it should be definite and well-settled and I think it would be a misfortune if I were understood as casting any doubt upon a matter which has been so settled as this. I am therefore, unable with very great respect to accede to the request made by Counsel for the appellant, THE Second Appeal fails and must be dismissed with costs.