IMPERLAL BANK Vs. INDAR PAL

JUDGEMENT

(1.) The respondent in this appeal is the Official Liquidator of the Imperial Bank of Aligarh and this appeal arises out of execution proceedings taken under a decree obtained by the Bank, on the 24thof April, 1910, against one Moti Lal, the father of the two appellants, on the basis of a promissory note, executed by Moti Lal alone. The sons were also impleaded as defendants to the suit, but as they were not parties to the promissory note, the suit as against them was withdrawn.

(2.) The family to which Moti Lal belonged consisted of himself and the two sons and his brother, and thus Moti Lal on partition would have been entitled to a one- sixth share. When the decree was obtained it was put into execution and the interest of Moti Lal, i.e., a one-sixth share in certain property was put to sale. It was again put into execution, as this did not satisfy the decree against Moti Lal and the decree-holder sought to put the remaining fire-sixths share to pale. The brother Babu Lal and the two sons filed objections. Those of Babu Lal were allowed and his share was released. The objections of the two sons were disallowed and hence the present appeal.

(3.) The ground of objection in the court below as entered in the petition filed jointly by the brother and sons, was merely that the attached property belonged to the objectors and not to the judgment-debtor and was therefore not liable to be sold. The lower court s judgment, however, shows that the case presented to it was: (1) That there had been a partition in July, 1910, i.e., just after the Bank s decree had been obtained, under which Moti Lal had separated, leaving his sons still joint with his brother and therefore the attached property was not liable. (2) That the liability of the son s share was res judicata because the Bank after making the sons parties to the suit withdrew it as against them.