SHIVRAM DHONDU PUJARA Vs. SAKHARAM KRISHNA KULKARNI

JUDGEMENT

(1.) The opponents in this execution proceedings are Hindus governed by the Mitakshara law. The original first defendant, their father, died before decree. On his death the opponents were placed on the record as defendants as his legal representatives. The plaintiff has obtained a simple money decree against them as such legal representatives for Rs. 1271-5-6 and costs to be recovered from the estate of the deceased. He has attached various properties mentioned in the application for execution which with a few trifling exceptions are ancestral properties which devolved exclusively upon the opponents by right of survivorship on their father's death. They claim that the ancestral properties form no part of the estate of their father at the date of the decree and consequently are not liable to attachment. It is no doubt correct that at the date of decree the properties in question formed no part of the estate of the deceased. It has however been decided by this Court in Umed Hathising V/s. Goman Bhaiji (7895) L.R. R. 20 Bom. 385, that a money decree obtained against the father of an undivided Hindu family can be executed after his death against his sons to the extent of the ancestral property that has come into their hands even if the debt has been incurred for the sole purposes of the father provided that it is not tainted with immorality and illegality and if the son against whom the decree is sought to be executed as representative of his father takes the objection that the debts are tainted with immorality he can do so under Section 244 of the Civil Procedure Code. That was a case in which the decree was sought to be executed against the son as legal representative under s.234 of the Code. The present is a case in which execution is sought against the sons added as legal representatives before decree, a situation dealt with in Section 252.

(2.) There is however no substantial distinction, in regard to questions arising in execution, between the position of legal representatives added as parties to the suit before decree and legal representatives brought in after decree under's 234. All questions between them and the decree-holder relating to execution must alike be disposed of under Section 244, We, therefore must follow the decision above referred to and we hold that it was open to the opponents to dispute in this proceeding the liability of the ancestral properties for the debt of their father on the ground that the debt was tainted with immorality or illegality. They cannot insist on the plaintiff resorting to a fresh suit to enforce their pious obligation as Hindu sons to satisfy the debt out of these properties because the question having arisen in execution proceedings between the decree-holder and themselves as parties to the suit, a separate suit is rendered inadmissible by the provisions of Section 244.

(3.) As the opponents have not impeached their father's debt on the ground either of immorality or illegality the decree-holder is entitled to execute his decree against all the attached properties unless his right to do so is, as contended by the opponents, barred by the law of Limitation under Art. 179 of the 2nd schedule to the Limitation Act. It is contended on their behalf that the words of Clause 2 in the third column of that article should not be taken literally and that as the opponents did not appeal against the original decree, although other defendants did, the date of the final decree of the appellate Court which was passed within three years from the initiation of these proceedings is a date which does not concern the opponents as the original decree which was final so far as they were concerned was passed more than three years before. We, however, are not disposed thus to disregard the plain words of Clause 2. There was an appeal and the final decree of the appellate Court was passed less than three years before plaintiff's application. That application is therefore within time. We confirm the judgment of the lower Court and dismiss the appeal with costs.