BUDARAJU VENKATARATHNA RAO (SINCE DECEASED) Vs. BUDARAJU VENKATASUBBIAH

JUDGEMENT

(1.) This is an appeal against the order of the Subordinate Judge, Bapatla, directing the sale of the properties that fell to the share of the appellants in a partition. The material facts may be briefly stated:

(2.) One Budaraju Venkata Subbayya and his sons instituted O.S. No. 106 of 1924 on the file of the Subordinate Judge's Court, Bapatla, against the first defendant and his sons for partition and possession of their half share in the family properties and also for an account and recovery of the amounts pertaining to their share. The first defendant to that suit is Budaraju Hanumantha Rao, the second defendant is his son, Ramakoteswara Rao and the other defendants are the other sons of Hanumantha Rao. The suit was decreed as prayed for. Under the decree a sum of Rs. 4,635-7-9 was directed to be paid by the first and second defendants to the plaintiffs. The plaintiffs also obtained a charge on the shares of the first and the second defendants. The appellants are the sons of the second defendant, Ramakoteswara Rao. They were born subsequent to the filing of the aforesaid suit. Pending the suit, the seventh and the eighth defendants filed a suit against their father, grandfather and his sons, O.S. No. 34 of 1931, Sub-Court, Tenali, for partition and for possession of their two-third share out of their father's one-fourth share of the family properties and obtained a decree on 5 September, 1935. In execution of the decree in O.S. No. 106 of 1924, the plaintiffs filed an application for sale of the immoveable properties that were allotted to the shares of the appellants and their grandfather Hanumantha Rao. The appellants contested that application mainly on the ground that the decree obtained in O.S. No. 106 of 1924 against their father and grandfather could not be executed against them as they were not parties to that suit and as they obtained a decree in O.S. No. 34 of 1931 for partition prior to the passing of the decree in O.S. No. 106 of 1924. The learned Subordinate Judge rejected their contention and directed the properties to be sold. The appellants have preferred the above appeal against that order. The 7th respondent in the appeal, that is, the grandfather of the appellants, has filed a memorandum of cross-objections mainly raising the plea of discharge of the decree and also that he was not given notice of re-hearing of the execution application.

(3.) The learned Counsel for the appellants contended that the decree against the father could not be executed against the properties that were allotted to the share of the sons as the sons obtained a decree for partition prior to the decree sought to be executed. Decided cases lay down two propositions apparently conflicting but really reconcilable: (i) In execution of a decree obtained against the father after partition of the joint family properties between the father and the son, the decree cannot be executed against the properties that fell to the share of the son even though the said decree was obtained on the basis of a pre-partition debt. (ii) If the father or the manager represented the family in the litigation and the members of the family were substantially parties to the suit through the manager though not eo nomine parties on the record, the decree so obtained can be executed against those who were either actually or constructively parties to the suit.