Bhubaneshwar Prasad Narayan Singh vs Bihari Lal and others

Fazl Ali, J.—It appears that in execution of two money decrees obtained by the respondents in the two appeals against the father of the appellants certain properties belonging to the joint family were sold and the appellants thereupon applied under O. 21, R. 90, for setting the two sales aside. A question them arose as to whether the appellants had the locus standi to make an application under O. 21, R. 90, or in other words, whether they were persons whose interest was affected by the sale. The learned Subordinate Judge in order to make up his mind on the question required the appellants to state clearly whether their interest, if any, in the property which had been sold would pass to the auction purchaser. The appellants did not like to commit themselves in the matter further than by saying that their interest had been affected by the sale and they also practically stated that they were members of a joint family. The learned Subordinate Judge however was not satisfied with this admission and dismissed the applications on the preliminary ground that they were not maintainable. It is against such an order passed by the Subordinate Judge in the two cases that the present appeals have been preferred.

The Subordinate Judge in rejecting the applications relied upon the decisions of the Madras High Court in Subbarayadu v. Pedda Subbarazu, (1893) 16 Mad 476 and of this Court in Medni Prasad Singh v. Nand Keshwar Prasad 1923 Pat 451 = 85 I C 1014 = 2 Pat 386. It appears to me however that neither of these decisions is applicable to the facts of the present case. All that was held in the case decided by this Court was that where a joint family property is sold in execution of a decree obtained against some of the members of the family and for which such members are alone liable, any other member of the family having an interest in the property may sue to set aside the sale and is not bound to apply under O. 21, R. 90, Civil P.C. (1908). Again the case decided by the Madras High Court was not one in which the joint family property was sold for a debt contracted by a father, but was one in which a certain person alleging himself to be the undivided brother and as such the legal representative of a deceased judgment-debtor had applied to have set aside a sale which had taken place in execution of the decree, of certain property alleged by him to be joint family property.

I think that the principle which is applicable to the present case is the principle which has been enunciated by the Judicial Committee of the Privy Council in Brij Narain Rai v. Mangala Prasad Rai, 1921 P C 50 = 77 I C 689 = 51 I A 129 = 46 All 95 (5 Patna Law Times, 1) where it has been held that under the Hindu law the pious obligation of the son to pay his father''s debt arises d uring the life time of the father and the son''s share in the joint ancestral estate could be sold as a result of the father''s debt even during the life time of the father. In this particular case it was not disputed before the Subordinate Judge that the appellants were joint with their father and in my opinion the Subordinate Judge was not justified in requiring the appellants to make any further admission. In this Court it is conceded by Mr. Mullick who appears on behalf of the appellants; that the whole property including the interest of the sons could be sold in execution of the decree obtained by the respondents against the father of the appellants and in these circumstances it is clear that the interest of the appellants was affected by the sale and they were competent to apply under O. 21, R. 90, I would in these circumstances set aside the order of the learned Subordinate Judge and direct that the case be disposed of on the merits according to law.

In passing this order however I should also state that one of the points raised on behalf of the respondents was that the appellants are bound by a compromise arrived at between the decree-holder respondents and the father of the appellants as early as on 31st July 1934 by which it was agreed that if the judgment-debtor would pay the decretal amount to the decree-holders by 31st January 1935 the sale would be set aside, but on his failure to do so the sale would be confirmed. It is contended on behalf of the respondents that in arriving it this compromise the father of the appellants acted as the karta of the family and represented the appellants and therefore the compromise would be binding upon the latter also. This is however a question of fact which it will be for the Subordinate Judge to investigate along with the other facts of the case. In my opinion these appeals must be allowed. Costs of these appeals will abide the result of the application under O. 21, R 90, Hearing fee ten gold mohurs. It is not necessary to pass any order on the stay application which becomes infructuous in view of the order passed. The Court below is directed to expedite the hearing of the application, under O. 21, R. 90.