Thiruvendipuram Dorairajam Nayanim Varu and Others vs Vemaswami Rama Naidu and Others

Horwill, J.—A fairly simple question has been raised by the appellants, although it has been argued with considerable vehemence by their

learned Advocate. A mortgage was executed by a mother and two sons; and mortgage decrees, preliminary and final, were passed against them.

The hypotheca was brought to sale; but as it was insufficient to discharge the mortgage debt, an application was put in under Order 34, Rule 6,

Civil P. C., for a personal decree against the two sons. Amongst other pleas, they stated that various payments had been made and that nothing

remained due. Their objections were overruled and a personal decree was passed against the sons for the amount that the plaintiff claimed. In due

course, execution was taken out; but by the time with which we are concerned both the sons had died and their legal representatives brought on

record. The latter raised no objection to being brought on record as legal representatives; but when the decree was transmitted to another Court

for execution against the family property of the two judgment-debtors and their legal representatives, objection was taken that no debt was due

and that therefore the property was not liable for the discharge of a debt that had at no time been in existence. The lower Court held that an

executing Court could not go into this question and so ordered execution to proceed. The legal representatives have appealed.

The general line of argument in the lower Court on behalf of the legal representatives seems to have been that their fathers--two of the three

mortgagors--were not really debtors at all but mere sureties for their mother. That, however, would not mean that any decree passed against them

would not be binding on their sons. Two other points have been put forward here. One is that since the sons were sureties for their mother and

then the mother, the principal debtor, was exonerated, the sons, who were merely sureties, would not be liable. This point was not raised in the

Court below; and as it depends on the ascertainment of facts, we cannot allow it to be argued here. The second point is the only one that requires

our consideration here. The contention now is that the Court that passed the personal decree determined wrongly the question whether the fathers

had discharged the mortgage debt by various payments made by them. These allegations, as already stated, had been put forward by their fathers

and had been negatived by the learned Judge. The appellants are therefore attacking the correctness of the decree. Since they were not parties to

the decree (unless it can be said that as far as these questions are concerned, their fathers represented them), they are entitled to have this question

reagitated; but the question is whether the lower Court was right in holding that the question could be considered only in a separate suit filed by the

legal representatives or whether that question can be gone into in execution proceedings.

We consider that this matter has been decided finally by two recent decisions of this High Court, the first being Lakshmadu v. Ramudu, ILR

(1940) Mad. 123 : AIR 1939 Mad. 867, a decision of a Bench, and the other Hamid Gani v. Ammasahib, I. L. R. (1942) Mad. 271 : AIR 1941

Mad. 898, a decision of a Full Bench. In the former case, the father had executed a mortgage deed and a decree had been passed against him.

The father died; and in execution the sons alleged that the debt was not a true one. This plea of the sons cut at the very root of the mortgage and

therefore at the decree based upon it. If the father had mortgaged family property for no consideration at all, then it was clearly an alienation that

was not binding on the sons; and so the decree also was not binding on them. The remedy sought to be adopted by the sons in that case was to file

a separate suit; and it was urged by the decree-holder that that was not the proper remedy and that the legal representatives should have raised

whatever objections they had to the execution of the decree against the family property in execution. It appears that they put forward their claims in

the final decree proceedings; but were not allowed to argue the point there; because, so the learned trial Judge held, the consideration of that

question was foreign to a mortgage suit and that the proper time for them to object was when execution was taken against the property which they

claimed was theirs. The learned Judges were inclined to think that since the decree-holder had objected to the legal representatives raising the

question in the final decree proceedings, it would not be open to him to resist the putting forward of the claim in a separate suit, for to do so would

be to blow hot and cold. The principal question, however, considered by the learned Judges was whether this objection could properly be said to

arise in the execution, discharge, or satisfaction of the decree; and they held that it could not, because the legal representatives were attacking the

decree itself. Abdur Rahman J. who delivered the judgment of the Bench, said :

If, on the other hand, these are being raised by a third party and are of a nature which go to the root of the matter and attack the decree itself,

they could not be gone into in execution proceedings for the simple reason that an executing Court cannot be asked to go behind the decree... If

persons who were not parties to the suit (the sons) and who have been already found not to be represented by their father, desire to challenge the

decree or the mortgage on the basis of which the decree was passed, they could not do so in execution proceedings.

After discussing the question of estoppel, the learned Judge said :

We must hold that the grounds raised by the plaintiffs in the suit do not fall within the ambit of Section 47, Civil P. C., and could not have been

enquired into by the executing Court.

The question was again considered by a Full Bench in Hamidgani v. Ammasahib, I. L. R. (1942) Mad. 271 : AIR 1941 Mad. 898. That related to

a suit for specific performance of a contract to sell. The promissor was a Muslim; and a relative of his, who was entitled to a share in the property,

was originally impleaded; but as she had not joined the promissor in the promise, her name was struck out. A decree was passed and execution

was taken out. When the Court sought to compel the execution of the sale deed, the relative brought a suit for a declaration and injunction; and the

question arose whether the relief sought by her could be granted in the suit, or whether the question should have been raised during the execution

proceedings. The learned Judges said, after considering and overruling Kuriyali v. Mayan, 7 Mad. 255 :

When a person comes into Court in execution proceedings as the legal representative of a deceased party he cannot question the decree which

has been passed. If the decree concerns property in which he claims an interest, the decree will not be binding upon him unless he was a party to

the suit. If he was not a party to the suit, as in this case, ... his rights will be entirely unaffected and he will be in a position to enforce them in a suit

instituted by him for that purpose.

The learned Judges then went on to consider the principle of Section 47, Civil P. C. and held that it did not apply to a case of that kind.

The learned Advocate for the appellants seek to distinguish these eases as ones dealing with property decrees and not money decrees; and he

particularly relies on a sentence towards the end of Hamidgani v. Ammasahib, I. L. R. (1942) Mad. 271 : AIR 1941 Mad. 898 which runs:

There are decisions of this Court to the effect that in execution proceedings arising out of money decrees questions relating to the property

attached must be decided in execution proceedings and not by a separate Suit,

The learned Advocate did not however go on to complete the sentence, the latter portion of which was: ""but this is an entirely different matter

because the correctness of the decree is not called into question."" The learned Advocate has cited a very large number of cases to which only the

briefest reference is necessary, to the effect that if a money decree is obtained against a father and it is sought to be executed against the joint

family property of the father and the sons, the sons are entitled to show in the execution proceedings themselves that the debt is not binding on

them. We have not called upon the learned Advocate for the respondents to reply; but he has indicated to us that he does not dispute the

correctness of this proposition; and indeed we have no doubt on this point ourselves. But the difference between the cases referred to by the

learned advocate for the appellants and the case that is now under consideration before us is that in the present case, unlike the cases cited, the

legal representatives are questioning the correctness of the decree itself. As we have stated above, they say that the Court which passed the

personal decree against the father erred in passing the decree it did and that the Court should have found that the sum which the plaintiff claimed

remained due to him had been already discharged by the various payments alleged by their fathers in the personal decree proceedings to have been

made by them. Those findings cannot be attacked in execution proceedings, as very clearly pointed out by Abdur Rahman J. in Lakshmadu v.

Ramudu, I. L. R. (1940) Mad. 123 : A. I. R. 1939 Mad. 867.

In B. Thavasimuthu Nadar and Another Vs. R. Thavasimuthu Nadar and Others, it was held that the nature of the debt can be called in question

in execution by the legal representatives. In Kanchamalai v. Shahaji Raja AIR 1936 Mad 205 : 59 Mad. 461, a decision of a Bench of five Judges

of this Court, Varadachariar J. at the end of his judgment said :

The sons may wish to raise a contention that the property sought to be sold is ''joint family property'', and that the decree against the father was

passed in respect of an illegal or immoral debt. In view of Section 53, Civil P. C., these questions must be decided by the executing Court and they

cannot be said to fall under Order 21, Rule 90. Nor, in view of the very wide terms of Section 47, Civil P. C., could it be maintained that they can

be raised and decided in a separate suit.

With great respect we entirely agree with what the learned Judge here said; but, as we have pointed out, in the case before us the very correctness

of the decree has been called in question. In (Vadlamannati) Venkatakrishnayya and Others Vs. (Vadlamannati) Venkatanarayana Rao and

Others, some general remarks of Ramesam and Cornish JJ. have been referred to. In Lakshmanan Chettiar v. Muthuchelliah Goundan, 41

M.L.W. 61 : AIR 1935 Mad 145. Varadachariar J. sitting with Burn J. laid down the same principle and suggested by implication, although the

matter was not before them, that the question whether a promissory note debt against a father is binding on the sons can be gone into in execution

proceedings. Lachmi Prasad Singh v. Basant Lal, 16 I. C. 970 : 16 C. L. J. 85, and Mt. Imtiaz Bibi Vs. Mt. Kabia Bibi , do not 1950 M/7 & 8

carry us any further than the Madras cases and are to very much the same effect. It is unnecessary to discuss them or Ma Shwe Ma Pru v. Maung

Ba On, A. I. R. 1928 Bang, 29 : 5 Rang. 659; Tamiabai v. Ranganath, AIR 1926 Nag. 476 : 96 I. C. 963; Bhagat Ram v. Nizam Din, A. I. R.

1921 Lah. 173 : 63 I. C. 853 and Ramakrishna v. Vinayak Narayan, 34 Bom. 354 : 5 I. C. 967, which have also been cited. The only decision

which can be said to support the appellants in the least is Indar Pal and Another Vs. The Imperial Bank, . In that case the remarks on which the

learned Advocate for the appellants relies are these :

A creditor who had obtained a decree against the father of a joint Hindu family, is entitled to put to sale the family property. The son whose

interests are threatened is entitled to an opportunity of contesting both the factum and the nature of the debt, and there is nothing in law to prevent

him from coming into Court in the execution department and preventing, if possible, on these two grounds, the passing of his interest to the auction

purchaser.

The learned Judges were not called upon to make such a wide statement; for they found that in the case before them there was no reason at all to

think that the alienation was not binding on the son. However, even if we take this obiter dictum as a correct statement of the law on this point, it

would still not help the appellants; for here we are not merely considering the question of the existence or non-existence of a debt; but the question

whether the trial Court rightly decided a claim made by their fathers to the effect that they had made certain payments and thereby discharged their

liability. In the result, the appeal is dismissed with costs.