M. Narayanan vs G. Subramaniam and Others

V.V. Raghavan, J.—The first respondent decree-holder in the Court below is the petitioner herein. The above revision petition arises in

execution proceedings. In O.S. No. 495 of 1966, the petitioner herein obtained a decree and in execution attached the joint family property

belonging to the judgment-debtors. After attachment was effected, the sons, one of them being a minor have filed the present application claiming

that they are entitled to their two-third share of the property that the decree is not binding on them and that the one-third share of the father alone

could be brought to sale in execution and that the decree is a personal decree against the father. The suit was for recovery of an amount from the

first defendant-company and the second defendant as director of the first defendant-company. That suit was decreed, and the ancestral properties

of the second defendant were brought to sale and the properties were attached and it is at that stage the present application by the sons is filed to

raise the attachment.

The 1st respondent decree-holder filed a counter contending that the sons have no locus standi to file the petition. The lower Court upheld the

claim of the sons and ordered the attachment of the two-thirds share of the sons to be raised, with the result that the decree-holder was directed to

proceed only against the one-third share of the father. Against the said decision, the present revision is filed.

Normally, I would not have interfered with the order of the lower Court as the petitioner has an effective alternative remedy by way of suit under

Order 21, Rule 63 of the Code. On the facts of the case, I am compelled to interfere with the order of the lower Court to render justice between

the parties. What happened is that the sons, not satisfied with filing the claim petition, filed a suit for partition before the learned Subordinate Judge

of Coimbatore in O.S. No. 19 of 1969 claiming two-thirds share in the suit properties. To that suit, the creditor who obtained a decree in O.S.

No. 495 of 1966 (petitioner herein), was impleaded as a party. The contention of the plaintiffs in the said suit was that the decrees obtained against

the father were not binding that the suit properties are the ancestral properties and could not be proceeded against and that the amounts borrowed

from defendants 2 to 4 are not for the benefit of the joint family. Subsequently to the order which is the subject-matter of the present revision, the

learned Subordinate Judge of Coimbatore delivered judgment in the said suit holding that the debts are binding on the plaintiffs. The first plaintiff

was granted his one-third share subject to the liability to discharge the debts due to defendants 2 to 4, of whom the decree-holder in O.S. No. 495

of 1966, was one. In regard to the share of the minor second plaintiff in O.S. No. 19 of 1969, the learned Subordinate Judge held that the partition

is not in the interest of the minor and, therefore, no share was decreed to the minor plaintiff. On the findings in the said suit that the debt is binding

on the family, the creditor will be entitled to proceed against the properties of the family and, therefore, the result is that the petitioner in the above

Revision Petition is entitled to proceed against the entire properties for recovering the amount I due to him.

I am, therefore, of opinion that the order of the lower Court raising the attachment in respect of the two-third share of the sons should be set

aside. The Revision Petition is allowed and there will be no order as to costs.