Rajmallu and another vs Goran Raj Reddy and others

Naik, C.J.—The law point involved in this case is whether the suit having been once dismissed against the sons, can the creditor attach the shares of the sons in joint family property in execution of the decree against the father ?

The facts of the case are simple. The appellants instituted a money suit against the father and his five sons and five grand-sons, which was decreed against the father alone; but was dismissed on merit against the sons and grand-sons. The creditors filed an execution application praying for the attachment of the joint family property. The sons and grand-sons objected to the attachment of the entire property and the executing Court converting this objection petition into a regular suit dismissed the whole suit. The lower appellate Court allowed the sons'' and grand-sons'' appeal to the extent of their shares. Against this decree, the creditors have filed a second appeal. The Advocate for the appellants relied upon ''Krishnan Naidu v. Sami Naidu'', A.I.R 1940 Mad 544 wherein it has been held that the sons'' share can be attached in execution of a decree even where the suit has been withdrawn against the sons. That authority has not been followed by the same High Court in ''Venkat Ranga Redfly v. Chinna Sithamma'', (1941) 1 Mad L J 270 where Mr. Justice Patanjali Sastri observes as follows:

Learned Counsel for the respondents has strongly relied upon a recent decision of this Court in Krishna Naidu v. Sami Naidu'', (1940 1 Mad L.J. 363)... We do not understand the case as deciding that if in a suit against a father and his sons, the sons are found not to be liable in respect of the debt sued upon and the suit is dismissed as against them, the creditor can, in executing the decree against the father, proceed nevertheless against the interests of the sons, as such a conclusion would be plainly contrary to the principle of res judicata.

In another case of the same High Court reported in Kumbakonam Mutual Benefit Fund, Ltd. v. C. Ramaswami'', (1946) 1 Mad L J 343, the learned Chief Justice after expressing his dissent from the earlier case quoted above observes at page 345 as follows:

We agree, however, that if the dismissal of the sons from the suit can be read as amounting to a decision by the Court that their interests in the family property are not liable for the debt, the pious obligation rule cannot be applied against them in execution of the decree obtained against the father....

We are of the view that once the liability of the sons has been adjudicated upon in the suit against the father to which the sons are also parties the decision in their favour cannot be disregarded by attachment of their shares in the joint family property in execution proceedings, for to do so would be to disregard the principle of ''res judicata''. In this case such an adjudication had been made in the original suit and the case against the sons and grand-sons dismissed. Therefore, their shares cannot be attached in the execution of the decree passed in the suit. The appeal is disallowed with costs.

M.A. Ansari, J.

I agree.