SHAMRAO KESHAV RAJADHYAKSHA Vs. SHANTARAM BALAJI NAIK

JUDGEMENT

(1.) This is a plaintiffs appeal. These had filed a suit to obtain a declaration that their half share in the plaint property was not liable to be attached and sold in execution of the decree in suit No. 10 of 1928. Suit No. 10 of 1928 had been brought against the appellants father, Keshav Anant, in the following circumstances :- Keshav Anant's wife's brother, one Gajanan Yeshvant Havaldar, had started a shop in the Savantvadi State, and in order to stock it with goods entered into an agreement with the defendant Shantaram Balaji Naik by which the latter was to supply him with money. Since Havaldar had not much credit, the plaintiff's father, Keshav, undertook to stand surety for him to the extent of Rs. 10,000. In the end Havaldar's business did not prosper and he got into debt, and when accounts were made up, Rs. 10,413 were found to be due. Rs. 413 were paid down in cash, and as to the remainder, plaintiff's father executed a promissory note for Rs. 10,000. This was on January 15, 1925. As he did not pay the amount secured by the promissory note, the suit in question, No. 10 of 1928, was brought against him and a decree was passed. In that suit the plaintiff's father had prayed for instalments and these were granted to him at the rate of Rs. 1,500 per annum. The plaintiff's father died, and the present plaintiffs succeeded to his estate and, it appears, paid the first instalment without any protest. They failed to pay the subsequent ones and execution proceedings were started against them, in which they were represented by the eldest of these brothers who, at the time, had attained majority.

(2.) We find on looking into the record that the eldest brother was appointed by the Court as guardian ad litem of his minor brothers in the execution proceedings. The plaintiffs contended that their shares of the property in suit were not liable for the debt, on the ground that they had not been benefited, and an issue was raised to the following effect- Are the shares of the sons of the deceased judgment-debtor liable to be sold in execution ? The original Court held that the shares were so liable and directed that the execution should proceed against them. There was an appeal to this Court, Vasant Keshav V/s. Shantaram Balaji (1932) F.A. No. 201 of 1931, decided by Patkar and Murphy JJ., on August 2, 1932 (Unrep.) which was heard by Mr. Justice Patkar and myself. The contention then again was that the debt was not shown to be to their benefit, and that the appellants were not liable for the debt of their father incurred as a surety for his brother-in-law. But the-decision went against them, and the Court held on the authority of Tukarambhat V/s. Gangaram (1898) I.L.R. 23 Bom. 454 and after considering the cases of Benares Bank, Ltd. V/s. Hart Narain , P.C. and Brij Narain V/s. Mangla Prasad (1923) L.R. 51 I.A. 129 that the then appellants were liable for their father's debts. The original Court's order in execution was thereupon confirmed and that appeal was dismissed.

(3.) The learned Subordinate Judge, before whom the suit out of which this appeal arises was prosecuted, has held that the suit is barred by Secs.11 and 47 of the Civil Procedure Code and that the plaintiffs shares of the property are liable for their father's debt on the promissory note. The suit has consequently been dismissed.