Muthu Kr. Ar. Pl. Arunachalam Chettiar vs Kalayappa Chettiar and Another

Horwill, J.—The respondents in this petition attached the whole family property of the father and the son before judgment. A decree was

obtained and the property was subsequently brought to sale and the purchase money deposited in Court. The father became insolvent and the

father''s share of the proceeds was handed over to the Official Receiver. Because the son''s share had already been attached the father had no

power over the son''s share of the property and so the Official Receiver was allowed to take only the father''s share of the proceeds. The

petitioner, who obtained a decree against the father on a promissory note debt, has filed a petition for rateable distribution. The Subordinate Judge

of Dindigul held that the petitioner could not be granted this relief.

The argument of the learned Advocate for the petitioner is that as the son is liable for his father''s debt, it is not necessary for him to add the son

as a party to execution proceedings against the family property, that his decree against the father must be considered to be a decree against the son

also, and that he can therefore execute his decree against the son''s share of the family property. Section 73 only applies to the execution of

decrees against the same judgment-debtor; but I have been referred to a Full Bench decision in Vayi Ramakrishna Chettiar represented by agent

Subramania Aiyar and Others Vs. Kasi Viswanatha Chettiar, to the effect that the words same judgment-debtor"" must not be construed too

strictly. There, one creditor obtained a decree against the father and then after his death added his two sons as his legal representatives, and a

second creditor obtained a decree against the sons of the father after the father''s death. It was held that in fact the decrees were against the estate

of the deceased father and that it made no difference that in one case the name of the father was given and in the other the names of the sons. In

the case under consideration the respondent has a decree against the son as well as the father, whereas the petitioner has a decree against the

father only. In his execution petition, the petitioner did not even make the son a party on the ground that he was liable for his father''s debts, and we

do not even know that the decree was obtained against the father for a debt binding on the son. In these circumstances I am not satisfied that the

decree of the petitioner can be considered to be a decree against the son also, which alone would entitle him to rateable distribution.

The petition is therefore dismissed with costs.