(Adivi) Bapiraju and Another vs Tummalapalli Sreeramulu and Others

Walsh, J.—Defendants 2 and 3 are the appellants in this second appeal which arises in the following way : A decree was obtained in O.S.

No. 34 of 1917 against defendant 1 who is the lather of the present appellants. An attempt was made in execution to sell the property in 1920 and

an attachment petition was put in but it was dismissed for default of prosecution. In 1924 another application to attach these properties was made

and the present appellants put in a claim, petition Ex. 6 on 23rd October 1924 alleging that subsequent to the decree there had been a partition

between them and their father and they had been in possession of the properties that fell to their share and these properties could not be attached

in execution proceedings for a decree obtained against their father. That claim was allowed the decree-holder''s pleader reporting no instructions.

The respondent who subsequently got an assignment of this decree put in an execution petition, E.P. 616 of 1925, to attach and bring to sale the

same properties. The appellants put in a second claim petition repeating their earlier plea and taking a further plea that as no suit had been instituted

to set aside the order passed on their previous claim petition the respondent was not entitled to make the attachment. This claim petition was

allowed on 9th March 1920 and the present suit was filed to sot aside the order on this latter claim petition. The trial Court upheld the contention

that the order on the second claim petition was correct as no suit had been instituted against the order on the first claim within a year. So far as the

appellants were concerned the suit against them was dismissed in the trial Court. In the lower appellate Court the learned Judge agreed with the

view that the order on the first claim petition had become final and therefore the order on second claim petition was correct except as regards item

No. 17, which he said had not been included in the previous claim petition. It may be noted that this point had not been raised either in the trial

Court or in the memorandum of appeal preferred to the lower appellate Court. He held that this item was liable to be attached in satisfaction of the

decree obtained against defendant 1.

Two questions are raised in this second appeal on behalf of the appellants. The first is that the lower appellate Court is wrong in saying that item

No. 17 was not included in the first claim petition Ex. 6. The second, argument is that assuming that it was not included, nevertheless, it is not liable

in law to be attached. As I am clear that the appellants must succeed on the second point I need only say as regards the first that it appears to me

doubtful that item No. 17 is not included in Ex. 6. Though the boundaries are different there appears to be only one house on the estate and Ex. 6

does include a house. If I did not hold that the appellants must succeed on the second point of law I should have been obliged to refer this question

back for further finding as : to whether certain boundaries given in Ex. 6 include item 17 or not. However, as I feel no doubt that the appellant must

succeed on the second point I need not discuss this matter further. The learned District Judge in para. 17 seems not to have recognised the

distinction between the liability of property in the hands of sons after partition to be seized in satisfaction of their father''s debts with the mode in

which the said seizure can be effected. The decision in Kameswaramma v. Venkatasubba Row 1914 Mad. 328, makes it clear that where there

has been a partition subsequent to a decree obtained against the father only, the property which has fallen to the sons in the partition cannot be

attached in execution of that decree.

In the earlier case Krishnaswami Konan v. Ramaswami Ayyar (1899) 22 Mad. 519, it had been held that where the partition was prior to the

decree the property in the hands of the sons could not be attached in satisfaction of the decree obtained against the father alone. The Full Bench

decisions in Subramania Ayyar v. Sabapathy Ayyar 1928 Mad. 657, and in Re Baluswami Ayyar 1928 Mad. 735, the former of which was

quoted by the learned District Judge, approves the decision in Kameswaramma v. Venkatasubba Row 1914 Mad. 328. It is quite one thing to say

that in a suit in which the sons have been impleaded, the property which has fallen to them in partition may be attached for a pre-partition debt of

the father which is binding on them, and another thing to say that where they have not been so impleaded in the suit the property which has fallen to

them in partition can be proceeded against. The lower appellate Court does not seem to have grasped this distinction. The learned Counsel for the

respondent cid not deny the legal position contended for, by the learned advocate for the appellants bat suggested that the attachment in 192L

which was made before the partition remained in force. But the trial Court has stated that the execution filed by the plaintiff in O.S. No. 34 of 1917

in 1920 was subsequently not proceeded with and it was also dismissed. It is clear therefore that there was no subsisting attachment at the time of

the partition which took place some time about 1921. Under these circumstances this second appeal must be allowed with costs and the decree of

the Court of first instance restored with costs here and in the Court below.