RAMA ASRA Vs. OFFICIAL RECEIVER OF SOUTH KANARA

JUDGEMENT

(1.) In 1932, one, Vasudeva Patteri, obtained a decree against one, Rama Asra, personally and as the manager of an undivided family for a sum of money. Previously, and pending the suit, there was an attachment of the properties belonging to the family of which the kartha was a member. In pursuance of the decree and by arrangement with the Canara Land Investments, Ltd., that company, on behalf of the decree-holder, issued an execution application which remained undisposed of until the 28 November, 1938, when it was directed to be struck off; but the attachment, which had first been effected in 1932, before judgment, was directed to continue for the space of one year. The year ended on the 28 November, 1939. The judgment-debtor Rama Asra died in the year 1934 at a time when the attachment was in force and the execution petition, to which reference has been made and which was instituted by the Canara Land Investments, Ltd, was against Rama Asra's legal representatives, viz., the remaining members of his family. The attachment, effected before the decree, having come to an end and having ceased to be effective in November 1939, there was no attachment in respect of the family property until October 1940 when fresh execution proceedings were instituted and further attachment was directed. These are all the facts to which reference need be made for the present consideration, although there are further complications and developments which have been cited, save that in 1944 the Official Receiver in the insolvency of the decree-holder, issued an execution petition seeking to have recourse in respect of the judgment obtained against Rama Asra in respect of his one-sixth share in the family properties which was his during his lifetime. The learned Subordinate Judge of South Kanara directed that the Official Receiver should be at liberty to proceed against the interests of the deceased Rama Asra in the properties of the family in which he was a coparcener during his lifetime. This is an appeal by some members of Rama Asra's family challenging the correctness of the decision of the learned Subordinate Judge.

(2.) Firstly, it was argued that the attachment effected in the year 1932 was against the whole, of the family property and not against the one-sixth share of Rama Asra ; consequently no right whatever with regard to Rama Asra's share can have accrued or can be obtained, in respect of the attachment, against the whole of the family property. In my view, the whole includes a part and, if there are any rights arising out of the attachment, they enure in respect of Rama Asra's one- sixth share. The first contention is one which has no basis.

(3.) Secondly, it was contended on behalf of the appellants that, since the attachment before judgment terminated in November 1939, the members of the family who survived Rama Asra and on whose death became entitled to his share in the property had no longer any clog upon the property to which they had survived ; while an attachment was subsisting, the survivorship was subject to the attachment but, when it came to an end, there existed no longer any clog upon their survived property.