MANRUP MANDAL Vs. BADRI SAO

JUDGEMENT

(1.) This second miscellaneous appeal arises out of an execution proceeding. The facts of the case may be briefly stated as follows: In 1935 respondent 1 instituted a rent suit against the appellants and their father, Rameshwar Mandal, to recover rent for the years 1339 to 1342 F. Ultimately the suit was compromised and a compromise decree was passed in favour of respondent 1 and one of the appellants signed the compromise petition on behalf of his father, Rameshwar Manual. It appears that Rameshwar Mandal was described as a karta of the family in the plaint, and he alone filed a written statement in the suit in which he stated that as he was the karta of the family the suit should have been instituted against him alone and his sons, defendants 2 and 3, were not necessary parties. As the appellants did not appear in the suit, the decree was passed as against defendant 1 alone and as against them the suit was dismissed for default.

(2.) The question which now arises is whether the share of the appellants in the holding which is advertised for sale can be sold in execution of the decree. It is contended on their behalf that inasmuch as the suit was dismissed as against them, their share in the holding cannot be sold. Both the Courts below have overruled this contention, and they have now preferred this second miscellaneous appeal.

(3.) The learned advocate for the appellants has urged before this Court that their objection ought to have been upheld by the Courts below, and in support of his contention he relies mainly upon the decision of this Court in Prahlad Das v. Dassrathi Satpathi A.I.R. 1940 Pat. 117. It was held in that case that where a decree-holder obtained a decree against the father in a suit against the father and son, and wanted in execution to sell the share of the son also, the decree being against the father only in his individual capacity and not as representing the son and also there being no decree against the son, it could not be executed against the interest of the son. It is contended that the principle laid down there is fully applicable to the present case, and the interest of the appellants cannot therefore be sold in execution of the decree.