IMMUDIPATTAM JANAKIRAMA KUMARA KONDAMA SUBRAMANIA NARHIMUTHU BOMMAYYA NAICKEN AYYAN AVERGAL Vs. CSUBRAMANIA AIYAR

JUDGEMENT

(1.) In this case the question arises in the execution of the decree in Original Suit No. 714 of 1911 on the file of the Principal District Munsif of Dindigul. The plaintiff obtained a decree against the then zemindar of Ayakudi for a certain sum of moneys That zemindar died in 1917 and this is an application made by the plaintiff for attachment of certain sums of money payable to the present zemindar under a lease which was granted by the previous zemindar who was the judgment-debtor, but for a period subsequent to the death of that zemindar. The decree is sought to be executed against the present zemindar as the legal representative of the late zemindar against the assets in his hands. The present zemindar objected to the attachment and contended that this money could not be treated as assets in his hands as it was his own money and further more that the matter could not begone into in execution. The Munsif gave effect to the plea that the matter could not be gone into in execution and referred the plaintiff to a suit, but, on appeal to the Appellate Court, the learned Subordinate Judge held that the matter should be decided in execution proceedings and has remanded the application to the lower Court for disposal on the merits. The appeal to us is by the present zemindar who contends that the order of the lower Appellate Court is not right.

(2.) It is clear to us that the money that has been attempted to be attached in this case cannot be considered to be the assets of the late zemindar at all, for it is money that has accrued due, under the lease of the zemindari, after the late zemindar's death and after the estate had passed into the hands of the present zemindar by right of survivorship. It is: true that, if the plaintiff (judgment-creditor) is able to show that his debt was for a sum of money borrowed for the benefit of the estate under Section 4 of the Impartible Estates Act, his debt would be a debt binding on the impartible estate and he would be entitled to enforce his debt as against the estate in the hands of the present, zemindar; but, by proving that the debt was borrowed for the benefit of the zemindari the zemindari does not become the assets of the late zemindar in the hands of the present zemindar. The only thing that results is whether the plaintiff will be able to enforce his debt against the impartible estate in the hands of the present zemindar.

(3.) We think that such a question could not be decided in execution proceedings. The view of the Subordinate Judge that the question is one of determining what are the assets of the late zemindar is not correct. The question is one of enforcing a new liability that would be created against the estate in the present zemindar's hands by proof that the debt was borrowed for the benefit of the estate. The plaintiff's proper remedy is to bring a suit and after obtaining a declaration that his debt is binding on the impartible estate and upon the income that has accrued due from the impartible estate in the hands of the present zemindar, to apply then in execuion of his decree to have it executed against such property.