KASHINATH MORESHWAR VAIDYA Vs. BAJI PANDURANG VAIDYA

JUDGEMENT

(1.) The facts which have been found by the Courts below and as to which there has been no dispute are shortly these. Defendant No. 1, brought a suit for a, money decree against one Vinayak. Vinayak having died during the pendency of the suit, these sons (under whom the present appellants claim) were brought on the record as his legal representatives and the suit passed into a decree in favour of respondent No. 1. In execution thereof the property now in dispute having been attached by the said respondent was purchased by respondent No. 2 at a Court sale. Subsequently respondent No. 2, sold the property to respondent No. 1. The present suit was brought by the appellants to recover possession of the property on the ground that it was the self-acquisition of their assignors, the sons of Vinayak. The defence was that the decree in the previous suit and the purchase consequent upon it bound the appellants assignors, and Section 244 of the Code of Civil Procedure of 1882, which was in force when the suit was brought, barred it. Both the Courts below have allowed this defence. Before us it has been urged that Section 224 has no application to the facts, because (it is said) the appellants assignors were parties to the decree in their representative, not in their own personal capacity, and as such were not bound to plead that the property was theirs, not their father s; and that the question arising in this suit is not one between parties to the decree, because the auction-purchaser was not a party thereto.

(2.) The decree in the previous suit having been against the appellants assignors, as sons of deceased father Vinayak the original defendant in the suit, it was a decree against them in respect of a debt of their father. Under the Hindu law it was their pious duty to pay it, unless it had been contracted for an illegal or immoral purpose. When the assignors were brought on the record as their father's representatives they were in their own as much as in their representative capacity. It has been held in Timed Hathising V/s. Goman Bhaiji 20 B. 385 that where a Hindu father dies after a money decree has been obtained against him only, the decree may be executed against his sons as if they were parties to the decree and that Section 244 applies to such a case. That principle ought to apply with greater force to a case like the present where the father dying during the pendency of the suit the sons were brought on the record as his legal representatives. The appellants assignors must, therefore, be held to have been parties to the decree.

(3.) But it is said that Section 244 is no bar to the present suit because the auction-purchaser was not a party to the decree. That circumstance, however, does not prevent the bar as has been well established by the decision of the Judicial Committee of the Privy Council in Prosunno Kumar Sanyal V/s. Kali Das Sanyal 19 C. 683 : 191. A. 166 approving of the decision of this Court in Sakharam Govind Kale V/s. Damodar Akhuram Gujar 9 B. 468. That decision of the Privy Council has been followed in several cases : see Bhubon Mohun Pal V/s. Nunda Lal Dey 26 C. 324 : 3 C.W.N. 399; Dhani Ram V/s. Chaturbhuj 22 A. 86; Amir Bahsha Sahib V/s. Venkatachala Mudali 18 M. 439. In all these, the suits were to set aside Court sales and both the decree-holders and auction-purchasers were parties. That is the case here too. Once we arrive at the conclusion that the appellants assignors, as the sons of Vinayak, were on the record of the previous suit in their personal capacity as such sons, liable to satisfy his debt under the Hindu law, and that they were parties to the decree in which that suit resulted, the suit now brought becomes virtually one in which the appellants, claiming under those parties, are seeking to set aside the sale held in execution of that decree and the question relating to that execution falls within the provisions of Section 244.