SIVALINGA THEVAR Vs. SRINIVASA MUDALIAR

JUDGEMENT

(1.) A.A.O. No. 519 of 1945:- This is an appeal by the third defendant against an order directing execution against him of a decree, dated 8 September, 1932 which was in respect of a promissory note executed by one Govinda Thevar. Govinda Thevar died before suit. His father Veerappa Thevar was the first defendant and his brothers Gopala and Sivalinga were the second and third defendants. The fourth defendant Veerappa Thevar was the son of the executant of the promissory note. The fifth defendant Murugappa Thevar was the son of Gopala the second defendant. There was a personal decree against defendants 1 and 2 who alone were majors while the decree against the other defendants who were minors was only against their interests in the family properties. On the 15th October, 1932 the decree-holder applied in E.P. No. 125 of 1932 for execution. This petition was dismissed on 20 November, 1933 as no sale batta was paid. On 1 November, 1933 the adult members of the family applied for their adjudication as insolvents in I.P. No. 29 of 1933 on the file of the Subordinate Judge's Court, Tiruvarur. An order of adjudication was made on 19 December, 1933. Nothing was done in the matter of execution of the decree till 8 November, 1943, when the decree-holder filed E.P. No. 70 of 1943 for attaching a portion of a fund which was in the custody of the Official Receiver who would appear to have sold in the insolvency of the adult members of the family not only their interests but also the interests of the non-insolvent members. On 29th January, 1944, the Court dismissed the petition holding that the entire sum with the Official Receiver must be taken to represent the shares of the insolvents alone. The present execution petition No. 62 of 1944, out of which this appeal arises was filed on 28 March, 1944, for the attachment of the interests of defendants 3 and 5 in the family properties on the footing that their interests had not vested in the Official Receiver by reason of the insolvency of the adult members of the family. In the execution petition it was stated in paragraph 6 that E.P. No. 125 of 1932 was closed on 20 November, 1933, on receipt of a stay order from the Subordinate Judge's Court, Tiruvarur, and on the basis of this allegation one of the prayers in the execution petition was that the execution petition No. 125 of 1932, should be revived. In view of what has already been stated, this allegation in respect of E.P. No. 125 of 1932 is not correct as that execution petition was dismissed for the decree-holder's default and not by reason of any stay order obtained from the Subordinate Judge's Court, Tiruvarur. The prayer therefore for the revival of E.P. No. 125 of 1932 was evidently not pressed before the lower Court.

(2.) Objection was taken on behalf of the third and fifth defendants that the execution petition is barred by limitation. The learned District Judge overruled this objection substantially holding that since Veerappa Thevar and Gopala were insolvents a decree against them could be executed against the third and fifth defendants by an application of the doctrine of pious obligation since the execution of the decree against Veerappa Thevar and Gopala is not barred by limitation. It is contended on behalf of the third defendant, who is the appellant in this appeal, that the learned District Judge was in error in his decision on the question of limitation. It is argued that where a father and a son are sued and there is a decree both against the father and the son, the decree against the son would become barred by limitation if an application is not made within the time prescribed in Art. 182 notwithstanding that for some reason or other execution of the decree against the father is not barred by time. The decisions in Venkataranga Reddi V/s. Chinna Sithamma (1941) 1 M.L.J.270, and Padarty Balayya V/s. Dorapureddi Parvateeswara Rao (1947) 1 M.L.J. 85, are quoted in support of this argument. In our opinion, they fully bear out the contention advanced on the appellant's behalf.

(3.) It is pointed out in these rulings that there are three classes of cases which have varying consequences on the question of limitation : (1) where a suit is filed against the father alone and the son is not made a party to the suit. In this case the decree against the father can be executed against the son's interest in the family property and there is no question of separate limitation so far as such execution is concerned. (2) The same result will follow in a case where a Hindu father and his sons are sued but the suit is withdrawn against the son or the son is exonerated for some reason or other and there is consequently no adjudication as to his liability in respect of the debt due sued for. (3) The third class of cases, with which we are directly concerned is where a decree is passed against the father and the son. It has been definitely ruled in the decisions, to which we have just referred, that where there is a decree against the son and the father, for purposes of limitation the decree against the son must be looked at independently from the decree against the father and in fact as if they are not so related and that even if the decree-holder is in time in seeking execution against the father it does not necessarily follow that execution against the son would also be in time.