Lakshmana Chettiar by receiver A.L.V.R.S.T. Veerappa Chettiar vs Muthu Chellia Goundan by guardian Chinnappa Goundan alias Muthuswami Goundan and Another

Varadachariar, J.—The appellant obtained a decree against the 2nd defendant, in O.S. No. 71 of 1925 on a promissory note executed by

the 2nd defendant. In execution of that decree he attached certain properties which formed the joint family properties of the plaintiff and the 2nd

defendant, the plaintiff being the 2nd defendant''s minor younger brother. The plaintiff intervened with a. claim petition and contended that his share

of the joint family properties should not be attached in execution. As that petition was dismissed he has filed the present suit for a declaration under

Order 21, Rule 63, Civil Procedure Code.

The plaintiff rested his case on several grounds. One contention of his was that he and the 2nd defendant were divided in status and that the 2nd

defendant could not have represented him at all. Another contention was that the promissory note was not executed for any purposes binding upon

him and therefore his share could not be proceeded against. He also relied on the fact that he was not a party to O.S. No. 71 of 1925.

The learned Subordinate Judge has held against the first two contentions of the plaintiff and he has found that the promissory note was executed

for debts binding upon the plaintiff except to a small extent. He has also found that the plaintiff and the 2nd defendant were undivided and that the

2nd defendant was the manager. He has however decided in plaintiff''s favour on the ground that as the decree in O.S. No. 71 of 1925 was only

against the 2nd defendant on a personal claim, the plaintiff''s share in the properties of the joint Hindu family are not liable to be attached in

execution. In support of this view he has relied on the decisions in Viraragavamma v. Samudrala I.L.R.(1885) 8 Mad. 208 and Mela Mal v. Gori

I.L.R.(1922) Lah. 288 The passage cited from Mayne''s Hindu Law (p. 487) and from the judgment in Subramanian Chetty v. Sivaswami Chetty

(1927) 54 M.L.J. 278 are also to a certain extent in favour of the view taken by him.

Mr. K. V. Krishnaswami Aiyar on behalf of the appellant contends that the case in Viraragavamma v. Samudrala I.L.R.(1885) 8 Mad. 208 was

not correctly decided and at any rate ought not to be followed at the present day. We are unable to agree that anything has happened since that

case was decided which affects the correctness of that decision. Prior to the Code of 1908, it had generally been held in this Court that the

question of the binding character of a debt upon persons not impleaded in the original suit was not a proper subject for investigation in the

execution proceedings. That rule has to a certain extent been modified by Section 53 of the Code of 1908, but the present case does not fall under

that provision. Where a suit is instituted on a promissory note, it is prima facie a personal claim; and but for the decision of this Court in Krishna

Ayyar v. Krishnasami Ayyar I.L.R.(1900) 23 Mad. 597 (which has been generally followed in this Court) it is open to question whether the

liability of other members of the family could have been adjudicated on at all in a suit on the promissory note. However, in view of that line of

cases, it was open to the creditor to implead the present plaintiff also, in O.S. No. 71 of 1925. Not having done so, he cannot ask the Court to

presume that the suit against the 2nd defendant was instituted in a representative capacity. Even apart from this question of the capacity in which

the 2nd defendant was sued, the reasons given in the case in Viraragavamma v. Samudrala I.L.R.(1885) 8 Mad. 208, justify the view that the

question of the binding character of the debt against other members of the joint family - at any rate if they are not sons or descendants of the

judgment-debtor - could not be gone into in execution proceedings. It is therefore not proper that a decree like that in O.S. No. 71 of 1925 should

be executed by attaching the interest of the plaintiff in the properties of the joint family. On this short ground the plaintiff must succeed. The appeal

therefore fails and is dismissed with costs.