NAMDEV TUKARAM GIRME Vs. VISHNU CHINTAMAN DUNAKHE

JUDGEMENT

(1.) There was a joint family consisting of Named and his son Savalaram together with Trimbak and Raghunath sons of Namdev's brothers Sopana and Piraji respectively. Savalaram opened a branch shop at Baramati, and from the facts found there is little doubt that that was a family shop, and that Namdev and his brother Sopana, now deceased, advised the present plaintiff to advance moneys to Savalarara for the purposes of the shop. Eventually plaintiff had to file a suit against Savalaram in which a consent decree was passed. In execution of that decree the plaintiff sought to attach certain property, when objections Avere raised to the attachment by Namdev and his nephews. The objections were maintained by the Court, and consequently the plaintiff brought this suit for a declaration that the property was liable to be sold in execution of the decree in Suit No. 30 of 1916 obtained against defendant No. 4, and that the summary order holding that the decree did not bind defendants other than defendant No. 4 should be set aside.

(2.) The trial Judge dismissed the suit, although it does not appear clear why he did not declare that the property to the extent of defendant No. 4's share therein was liable to be sold in execution of the plaintiff's decree.

(3.) In appeal the decree of the lower Court was set aside, and the plaintiff obtained the declaration he prayed for. If it had been held in the suit filed by the plaintiff against Savalaram, that Savalaram was manager, and if that had been so stated in the decree, then it would have been possible for the plaintiff in execution of the decree to attach family property in the hands of Namdev and his nephews. Although we are told that in the title of the suit Savalaram was described as manager, it is admitted now that there was no finding on that question, and the decree was passed against Savalaram personally. I may point out that although our decision depends on the wording of the decree in that suit, the decree has not been translated. The question then which arises as far as we can judge can be answered in this way. When there is a decree against A who happens to be a member of a joint Hindu family, without stating whether he is sued in a representative capacity or not, the property belonging to the family cannot be seized in execution of the decree against A. It seems to me clear that the interests of persons who are not parties to the decree either by name or by implication cannot be attached in execution of such a decree. That is one of the elementary principles of law as regards the limitations of a decree against an individual. There is no necessity to refer to any authority for that, though reference may be made to Laxman Nilkant V/s. Vinayak Keshav (1915) I.L.R. 40 Bom. 329; 18 Bom. L.R. 52, where it was held that when the stage of sale of property has not been reached there is no reason for assuming jurisdiction to dispose of property belonging to one who was not a party to the suit and was not a representative of the judgment- debtor. The case which most frequently comes before the Court is the case where a decree has been passed against a person as manager of a family, and the property of the family having been sold in execution, the question arises whether the interests of persons who were not parties to the suit passed by the sale. But it seems to me extremely inadvisable that the Court should be asked to decide upon the liability of a person by means of execution proceedings, when he is not a party to the suit, and is not mentioned in the decree which is sought to be executed, and where no attempt has been made at the hearing to prove that such a person is liable. I think, therefore, that however morally unsound the contention of the present appellants may be, the plaintiff has not taken the necessary steps to make them liable for his dealing with Savalaram and we must hold that defendants Nos. 1, 2 and 3 are entitled to have the suit dismissed as against them. The plaintiff is entitled to a declaration that the property to the extent of defendant No. 4's share therein is liable to be sold in execution of his decree. The suit is dismissed as against defendants Nos. 1 to 3 who must get their costs throughout. Shah, J.