SRINIVASARAGHAVA IYENGAR Vs. KRARAVAMUTHU IYENGAR

JUDGEMENT

(1.) THE appellant obtained a decree against the 1 respondent in respect of a debt binding upon the family-consisting of the 1 respondent and his minor son the 2nd respondent. THE 2nd defendant had been impleaded in the suit, but was given up, and a decree was passed against the father alone. After the decree the father and son have divided their properties as a result of a partition suit. THE appellant now seeks to execute the decree against the father by proceeding against the property allotted to the separate share of the 2nd respondent, contending that the 2nd respondent is liable for the debts incurred for family necessity prior to partition and that execution can be taken against his property. It is true that the property which is given to the 2nd respondent on partition may be liable in proper proceedings for the debt incurred by the father, but, it does not necessarily follow that the decree against the father can be executed against the son, and there are observations to this effect in Ramachandra Jagannatha Rao V/s. Vadrevu Viswesan (1). In the first place a decree must be executed against the judgment-debtor or his legal representative. In the present case it cannot be said that the 2nd respondent is the legal representative of his father in respect of his separate property. Further there is the difficulty which meets the appellant that if it were to be held that the father retained some sort of right in this separate property of the son and that, therefore, it can be proceeded against as the property of the father, no leave has been obtained to institute these proceedings under Section 28 of the Provincial Insolvency Act,

(2.) A further request is put forward by the appellant that this petition should be remanded for a finding as to whether the partition was fraudulently effected in order to defeat his debt. The point was incidentally but not specifically mentioned in the execution petition. It was not argued in either of the lower Courts and no request was made either in the, trial or in the lower Appellate Court for taking evidence on this point and it is too late now to raise such a question. The second appeal is, therefore, dismissed with costs.