Sivalinga Thever v. Srinivasa Mudaliar And Others

(Prayer: Appeal (disposed of on 3-9-1947) against the order of the District Court of East Tanjore dated 22-1-1945 in E.P. 62 of 1944 (in O.S. 30 of 1931, Subordinate Judges Court, Tiruvarur) on the file of the District Court, East Tanjore etc.)

Govindarajachari, J.

A.A.O. No. 519 of 1945 .This is an appeal by the third defendant against an order directing execution against him of a decree dated 8th September 1932 which was in respect of a promissory note executed by one Govinda Thevar. Govinda Thevar died before suit. His father Veerappa Thevar was the first defendant and his brothers Gopala and Sivalinga were the second and third defendants. The fourth defendant Veerappa Thevar was the son of the executant of the promissory note. The fifth defendant Murugayya Thevar was the son of Gop ala the second defendant. There was a personal decree against defendants 1 and 2 who alone were majors while the decree against the other defendants who were minors was only against their interests in the family properties. On the 15th October 1932 the decree-holder applied in E.P. No. 125 of 1932 for execution. This petition was dismissed on 20th November 1933 as no sale batta was paid. On 1st November 1933 the adult members of the family applied for their adjudication as insolvents in I.P. No. 29 of 1933 on the file of the Subordinate Judges Court, Tiruvarur. An order of adjudication was made on the 19th December 193

3. Nothing was done in the matter of execution of the decree till 8th November 1943 when the decree-holder filed E.P. No. 70 of 1943 for attaching a portion of a fund which was in the custody of the Official Receiver who would appear to have sold in the insolvency of the adult members of the family not only their interests but also the interests of the non-insolvent members. On 29th January 1944 the Court dismissed the petition holding that the entire sum with the Official Receiver must be taken to represent the shares of the insolvents alone. The present Execution Petition No. 62 of 1944 out of which this appeal arises was filed on 28th March 1944 for the attachment of the interests of defendants 3 and 5 in the family properties on the footing that their interests had not vested in the Official Receiver by reason of the insolvency of the adult members of the family. In the execution petition it was stated in paragraph 6 that E.P. No. 125 of 1932 was closed on 20th November 1933 on receipt of a stay order from the Subordinate Judges Court, Tiruvarur, and on the basis of this allegation one of the prayers in the execution petition was that the execution petition No. 125 of 1932 should be revived. In view of what has already been stated, this allegation in respect of E.P. No. 125 of 1932 is not correct as that execution petition was dismissed for the decree-holders default and not by reason of any stay order obtained from the Subordinate Judges Court, Tiruvarur. The prayer therefore for the revival of E.P. No. 125 of 1932 was evidently not pressed before the lower Court.

Objection was taken on behalf of the third and fifth defendants that the execution petition is barred by limitation. The learned District Judge overruled this objection substantially holding that since Veerappa Thevar and Gopala were insolvents a decree against them could be executed against the third and fifth defendants by an application of the doctrine of pious obligation since the execution of the decree against Veerappa Thevar and Gopala is not barred by limitation. It is contended on behalf of the third defendant, who is the appellant in this appeal, that the learned District Judge was in error in his decision on the question of limitation. It is argued that where a father and a son are sued and there is a decree both against the father and the son, the decree against the son would become barred by limitation if an application is not made within the time prescribed in Art. 182 notwithstanding that for some reason or other execution of the decree against the father is not barred by time. The decisions in Venkataranga Reddi v. Chinna Sithamma (1941) I. M.L.J. 270=53 L.W. 181), and Padarty Balayya v. Dorapu Reddi Parvateeswararao (1947) I. M.L.J. 85=60 L.W. 71), are quoted in support of this argument. In our opinion, they fully bear out the contention advanced on the appellants behalf.

It is pointed out in these rulings that there are three classes of cases which have varying consequences on the question of limitation: (1) Where a suit is filed against the father alone and the son is not made a party to the suit. In this case the decree against the father can be executed against the sons interest in the family property and there is no question of separate limitation so far as such execution is concerned. (2) The same result will follow in a case where a Hindu father and his son are sued but the suit is withdrawn against the son or the son is exonerated for some reason or other and there is consequently no adjudication as to his liability in respect of the debt sued for. (3) The third class of cases, with which we are directly concerned is where a decree is passed against the father and the son. It has been definitely ruled in the decision, to which we have just referred, that where there is a decree against the son and the father, for purposes of limitation the decree against the son must be looked at independently from the decree against the father and in fact as if they are not so related and that even if the decree-holder is in time in seeking execution against the father it does not necessarily follow that execution against the son would also be in time.

The decree-holder in the present case did nothing whatever from 1933 to 1944 when he filed the persent execution petition or at any rate till 1943 when he filed E.P. No. 70 of 194

3. Execution against the sons interest cannot therefore be had because of the bar of limitation whatever might be the position as regards execution against the fathers share.

On behalf of the respondent (decree-holder) Mr. Viswanatha Sastri frankly admitted that if the two decisions cited above are regarded as laying down the correct law the result would no doubt be the dismissal of the execution petition. But he argued that the propositions enunciated in those decisions reveal a certain absence of logic and that they require reconsideration. We are unable to see anything illogical in the propositions laid down in these decisions. If a creditor chooses to make the son a party and secures the benefit of a decree against him, he must also face the consequence of that part of the decree getting barred by limitation if he does not file an execution petition within the time prescribed by law and cannot maintain that it is not barred because for some adventitious reason execution against the father is not barred. The point of the above decisions is that when the liability of a son arising under the doctrine of pious obligation gets crystallized into a decree of Court, it is no longer permissible to look at the original obligation which is merged in the new obligation created by the decree. The relationship between the two defendants is thereafter irrelevant and the son is entitled to ask that for purposes of limitation in the matter of the execution of the decree he and his father should be regarded and dealt with as if they are merely two judgment-debtors. We respectfully agree with the reasoning of the two decisions which have been quoted and the consequence will be that the appeal will be allowed with costs here and in the lower court.

A.A.O. No. 64 of 1946 :This is an appeal by the decree-holder in respect of the same execution petition. In this appeal the decree-holder seeks to make the shares of Subrahmanya, another son of Veerappa Thevar the first defendant, and Vaduganada a grandson of Veerappa Thevar, liable for satisfaction of his decree. He asks for attachment of their shares which are 1/5 and 1/15 respectively. It would appear that neither of these persons was a party to the execution petition and no relief was sought against their 4/15 share. Th e only prayer in the execution petition was that the 8/15 share of the non-insolvent defendants 3 and 5 should be attached and sold in execution of the plaintiffs decree. It turned out that defendants 3 and 5 have only 4/15 share between themselves. However that may be, the concerned persons not being parties to the execution petition and there being no prayer in respect of their shares there is no way in which the decree-holder can get the relief which he is now seeking.

The appeal therefore fails and is dismissed. No separate order as to costs.