PRAHLAD DAS Vs. DASARATHI SATPATHI

JUDGEMENT

(1.) The facts of the case out of which this second miscellaneous appeal has arisen are these. The appellants brought a suit to enforce a simple mortgage executed in his favour by defendants 1 to 3 of the suit impleading their respective sons as defendants & to 6. The suit was decreed and the mortgaged properties were sold in execution of the decree. The sale proceeds were insufficient to satisfy the decree, and the appellant applied for a decree under Order 34, Rule 6, Civil P.C. In this application he specifically asked for a decree against defendants 1 to 3 only, and not against their sons, defendants 4 to 6. A money decree was passed against defendants 1 to 3 and in execution of it the appellant brought to sale the shares of these defendants in the joint family property. The decree however still remained unsatisfied and he wanted to sell the shares of the sons (defendants 4 to 6) also in the joint family property. The executing Court refused to do so and the order has been upheld in appeal by the learned District Judge. The decree-holder has preferred this, second miscellaneous appeal.

(2.) In my opinion the orders of the Courts below are correct, though they have not given their reasons in detail. Mr. H. Mahapatra, who appears on behalf of the appellant, has very strenuously contended that the decree is executable against the shares of defendants 4 to 6 in the joint family property. His whole argument is based upon the pious obligation of a son to pay out of; the joint family property his father's debts not tainted with illegality or immorality. Nobody disputes this liability, but the question with which we are concerned is not the liability of defendants 4 to 6 but whether it can be enforced against them under the decree as it stands. Because a son is liable to pay his father's debts it does not follow that his share in the property can be taken away without there being a decree in which either he is a judgment-debtor or can be deemed to be a judgment-debtor. Whether a decree against a father can be executed against his sons is not a question of the Hindu law, but of the Civil Procedure Code.

(3.) Ordinarily, a decree is enforceable only against the judgment-debtor named therein and on his death against his legal representatives to the extent the law makes them liable. But in cases governed by the Hindu law if it is against a karta of a family and was obtained in a suit in which he was sued as such it is binding upon the junior members of the family also as they were represented in the suit by the karta. So, if a father is sued for his personal debt, not tainted with immorality or illegality, he represents in the suit his sons who are joint with him and a decree thus obtained against him must be taken to be a decree against his sons also.