A.L.S.P.P.L. Subramaniam Chettiar by agent Narayanan Aiyar vs Annamalai Chettiar by agent Ramaswami Aiyar

Alfred Henry Lionel Leach, C.J.—This petition raises a question with regard to the right to rateable distribution given by Section 73 of the

Code of Civil Procedure, but when the authorities are examined it is clear that they negative the petitioner''s contention. In 1931 the petitioner

obtained a money decree against a grandfather, his son and his son''s son. The respondent had previously obtained a money decree against the

grandfather and the son, but not against the grandson. In 1931, in separate proceedings, the grandfather and the son were adjudicated insolvents.

In 1937 the petitioner filed an application for execution of his decree and asked for the attachment of the grandson''s interest in the family property.

Attachment was ordered and the grandson''s interest was sold on 31st August, 1937. Before the sale took place the respondent filed an

application for the execution of his decree, and he also asked for the attachment and sale of the grandson''s share in the family property. On the

strength of this application the respondent claimed to be entitled to share rateably in the sum of Rs. 800, which was the amount realised in the

execution proceedings instituted by the petitioner. The petitioner objected to the respondent''s claim to rateable distribution, but his objection was

overruled by the District Munsif of Dharapuram in whose Court the execution petitions were filed and the assets realised. The District Munsif, in

rejecting the petitioner''s contention, relied on the decision in A.M.A.M.R. Palaniappa Chettiar and Others Vs. Palani Goundan, . The petitioner

asks this Court to set aside the District Munsif''s order under its revisional powers.

It is now well settled law that where a father who is joint with his son becomes insolvent, the right of realising the son''s share in the family estate

under the pious obligation rule devolves upon the Official Assignee or the Official Receiver as the case may be. But, if before the Official Assignee

or the Official Receiver takes steps to en force that right, a judgment-creditor of the father attaches the son''s interest in the estate, the power of the

Official Assignee or Official Receiver to sell the son''s share is lost. See Sat Narain v. Behari Lal (1924) 47 M.L.J. 857 : L.R. 52 IndAp 22 : ILR

6 Lah. 1 , T.S. Balavenkataseetharama Chettiar and Another Vs. The Official Receiver and Others, , Sat Narain v. Sri Kishen Das : Same v. The

Bank of Upper India (1936) 71 M.L.J. 812 : L.R. 63 IndAp 384 : ILR 17 Lah. 644 , Adusumilli Gopalakrishnayya Vs. Peyyeti Gopalam and

Others, and Rm. Ar. Ar. Rm. Arunachalam Chettiar (dead) and Others Vs. Sabaratnam Chettiar and Others, Therefore, as the result of the

petitioner''s attachment of the grandson''s share the Insolvency Court lost all its interest in that share, which then became available to the petitioner

as the executing creditor and to all persons who became entitled to rateable distribution u/s 73 of the Code of Civil Procedure. Before the

proceeds of the grandson''s property were brought into Court, the respondent field his application for execution and thereupon became entitled to

rateable distribution.

On behalf of the petitioner the argument has been advanced, that the respondent''s decree was not obtained against the same judgment-debtor

and therefore Section 73 does not apply, but this argument cannot be accepted. There is ample authority for holding that where a money decree is

passed against a grandfather who is joint with his son and grandson it must be taken to be a decree passed against the son and the grandson to the

extent of their interests in the family property as they are liable to that extent for his lawful debts. In Ramanathan Chettiar Vs. Subramania Sastrial

and Others, , where the decree of one of two judgment-creditors was against the father while the decree of the other judgment creditor was

against the father and his son, but the properties from which the assets had been realized by sale were the ancestral properties of the family of

which the father and son were undivided members, White, C.J., held that the decrees were ""against the same judgment-debtor"" for the purpose of

Section 295 of the Code of 1882, to which Section 73 of the present Code corresponds. In Ramakrishna Chettiar v. Viswanathan Chettiar (1935)

69 M.L.J. 276 : ILR 26 Mad. 179, a Full Bench of this Court (Beasley, C.J., Cornish and Pandrang Row, JJ.) held that the legal representative of

a deceased person against whom a decree was passed in his life time but which was sought to be executed against his property in the hands of his

legal representative-was the same judgment-debtor within the meaning of Section 73. Pandrang Row, J., in whose judgment Beasley, C.J.,

concurred, observed that it was obvious that a strict literal construction of the expression, ""the same judgment-debtor"" could not be adopted in the

sense that the decrees must be against the same persons eo nomine, and the weight of authority appeared to favour a liberal construction of the

expression ""the same judgment-debtor"". The decision of White, C.J., in Ramanathan Chettiar Vs. Subramania Sastrial and Others, , was referred

to with obvious approval.

In Swaminatha Aiyar v. Saivu Rowthan (1935) 43 L.W. 624, Venkataramana Rao, J., held that when a decree has been passed against a

manager of a joint Hindu family, the other members of the family must be deemed to be judgment-debtors as well, and where another decree-

holder has obtained a decree against the manager and the other members of the family, they are entitled to rateable distribution. The learned Judge

considered that the Full Bench decision in Vayi Ramakrishna Chettiar represented by agent Subramania Aiyar and Others Vs. Kasi Viswanatha

Chettiar, , applied. There was no insolvency in this cafe, but in a later decision, A.M.A.M.R. Palaniappa Chettiar and Others Vs. Palani Goundan,

Venkataramana Rao, J., had to consider the same question in connection with insolvency proceedings. In that case the respondent filed a suit

against the father and attached before judgment the family property. He eventually obtained a decree, and five months later the judgment-debtor

was adjudicated an insolvent. Subsequent to the adjudication, the petitioner, with the leave of the Insolvency Court, filed a suit against the father

and his sons. The petitioner also applied for attachment before judgment of the son''s share in the joint family property. A decree was in due course

passed in his favour and the son''s shares were realized in execution proceedings. Before the sale took place the respondent applied for the

execution of his decree by the sale of the family estate and claimed rateable distribution. The learned Judge held that he was entitled to rateable

distribution as the decree obtained against the father and the father and the sons were decrees passed against the same judgment-debtor. A similar

decision was given by the learned Judge in Kandula Ramayya Vs. Bangaru Rangaraju and Others, .

The only case which lends support to the petitioner''s argument is Muthu Kr. Ar. Pl. Arunachalam Chettiar Vs. Kalayappa Chettiar and

Another, , which was decided by Horwill, J. There the respondents attached before judgment the estate of a joint family consisting of the father

and a son. A decree was obtained and the property was subsequently brought to sale, the purchase money being deposited into Court. The father

then became an insolvent, and the father''s share of the proceeds was handed over to the Official Receiver. The petitioner had obtained a decree

against the father on a promissory note and applied for a rateable distribution. His application was filed before the proceeds had been deposited

into Court. Horwill, J., considered that the petitioner was not entitled to rateable distribution. It would appear from his judgment that he considered

that the Full Bench decision in Vayi Ramakrishna Chettiar represented by agent Subramania Aiyar and Others Vs. Kasi Viswanatha Chettiar, , had

no application and he laid stress on the fact that the petitioner did not make the son a party to the execution proceedings on the ground that he was

liable for his father''s debts and that the Court did not know that the decree was obtained against the father for a debt binding on the son. In these

circumstances he rejected the petitioner''s claim to rateable distribution. This decision js in direct conflict with the judgments of Venkataramana

Rao, J., in A.M.A.M.R. Palaniappa Chettiar and Others Vs. Palani Goundan, , and Kandula Ramayya Vs. Bangaru Rangaraju and Others, , and it

also runs contrary to the decision of the Ful 1 Bench in Vayi Ramakrishna Chettiar represented by agent Subramania Aiyar and Others Vs. Kasi

Viswanatha Chettiar, . The judgment of Horwill, J., was considered by Venkataramana Rao, J., in Kandula Ramayya Vs. Bangaru Rangaraju and

Others, , and I am in entire agreement with the observations of Venkataramana Rao, J., which are these:

The learned Judge seems to be of the opinion that where there is a decree against the father alone it cannot be said that the decree was obtained

against the father for a debt binding on the son. It may be so. But once there is a decree against the father the creditor is entitled to enforce the said

decree against all the joint family property including the shares of the sons until the sons choose to take exception to it either in execution or by way

of a suit that the said debt is one which they are not liable to pay under the Hindu Law. So long as the decree stands and the property sold is joint

family property, no question as to the binding nature of the debt arises in the consideration of the question whether the judgment-debtors are the

same.

It follows that I consider the judgment of Horwill, J., to be erroneous and should be overruled. It also follows that I consider that the decision of

the District Munsif in the present case was right. The petition will be dismissed but as the respondent has not appeared there will be no order as to

costs.

I wish to express the appreciation of the Court for the great assistance which it has received from Mr. K.V. Ramachandra Ayyar who has

appeared on behalf of the petitioner. He has placed all the relevant authorities before the Court.

Krishnaswami Aiyangar, J.

I agree.