PADARTY BALAYYA Vs. DARAPUREDDI PARVATEESWARARAO

JUDGEMENT

(1.) The plaintiff decree-holder is the appellant, and the appeal is against an order dismissing his petition for executing the decree against defendants 2 to 6 in O.S. No. 61 of 1932, on the file of the District Court, Ellore. The suit was filed, not only against the father, the first defendant, but also against his sons in respect of money due on a promissory note. A decree was passed not only against the father but against the sons defendants 2 to 4 also as against the joint family property in their hands. The decree was passed on the 28 August, 1933. The execution petition was filed against defendants 2 to 4 only and against defendants 5 and 6 who were born subsequent to the decree in the suit and who were added in their individual capacity in the execution proceedings. The first execution petition, E.P. No. 24 of 1934, was filed against the father and sons on the 6 January, 1934, and it was struck off on the 1st March, 1936, for want of bidders. On the 15 December, 1934, the first defendant was adjudged insolvent in I.P. No. 25 of 1934 on the file of the District Court, West Gosavari. On the 15 September, 1942, the adjudication was annulled and the property reverted to the insolvent. He died on the 26 January, 1941. E.P. No. 48 of 1944 was filed on the 22nd April, 1944, for attachment and sale of the 4/5 share of the Soint family property belonging to the sons only, because they had already filed the suit O.S. No. 701 of 1941 for partition and obtained a decree in respect of the 4/5 share of the joint family properties on 20 April, 1943.

(2.) It was contended that the execution petition, E. P. No. 48 of 1944, was barred inasmuch as it was filed more than three years after the date of the final order passed on the previous application, E. P. No. 24 of 1934. It was argued for the decree-holder that the period from the date of the adjudication of the first defendant, the father, to the date of annulment should be deducted and if it was deducted, the petiti n would be in time. What was sought to be attached was the property in the hands of the sons and not of the father, and as it was the father who was declared insolvent and not the sons, the period could not be excluded. In law, the interest of the sons in the joint family properties does not vest in the Official Receiver on the adjudication of a joint Hindu father. Consequently it is only as against the interest of the father in the joint family properties that execution cannot proceed. Since the pendency of the insolvency proceeding would not be a bar to the execution of the decree as against the sons and their interest in the family properties, it was contended that this period could not be excluded. The learned subordinate Judge agreeing with this contention dismissed the execution petition as barred by time. The decree-holder has hence filed this appeal.

(3.) It is contended relying on the decision of this Court in C.M.A. No. 634 of 1941 that as the decree was alive against the father, it could be executed as against the sons ; but then, that was a case in which the decree was sought to be executed as against the sons on the death of the father as his legal representatives. In this case, it is not as legal representatives of the father, the insolvent, that the decree was sought to be executed against the sons, against whom there was a decree passed on that date. So this decision cannot apply to the facts of the case. Reliance was also placed on the decision in Kuppuswami Goundan V/s. Lakshmi Achi but this was not a case in which the question of limitation to the execution of the decree was considered. In that case the decree was obtained as against the father and son on a promissory note execute 1 long before adjudication. Learned Counsel for the appellant also relied on the case in Krishna V/s. Somi . All that was held was that where a decree had been obtained against the father in a suit in which the sons were also impleaded and the claim as against the sons was not pressed, the decree could be executed as against the sons on the ground that the decree-holder was entitled to enforce the pious obligation of the sons in respect of the decree. None of the cases cited have any application to the facts of the present case.