Judgment

B. K. Mukherjea, J. - This appeal is on behalf of the judgment debtor in a proceeding for execution of a money decree and it is directed against the judgment of a Letters Patent Bench of the Punjab High Court dated 18-5-1949, by which the learned Judges affirmed in appeal, a decision of a single Judge of that Court dated 29-10-1946. The original order against which the appeal was taken to the High Court was made by the Senior Subordinate Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections preferred by the appellants under S. 47. Civil P. C.

2. To appreciate the contentions that have been raised in this appeal, it would be necessary to give a short narrative of the material events in their chronological order. On 30-9-1925 Baldev Das, the father of the appellants, who was, at that time the manager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour of Mt. Naraini, the original respondent 1, and another person named Talok Chand, by which certain movable properties belonging to the joint family were hypothecated to secure a loan of Rs. 16,000. On 16-4-1928 the appellants along with a minor brother of theirs named Sumer Chand filed a suit - being Suit No. 23 of 1923 - in the Court of the Subordinate Judge of Shahjahanpur against their father Baldev Das for partition of the joint family properties. The suit culminated in a final decree for partition on 20 7-1928 and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.

On 29-9-1934 Mt. Naraini filed a suit in the Court of the Senior Subordinate Judge, Ambala, against Baldev Das for recovery of a sum of Rs.12,500 only on the basis of the mortgage bond referred to above. It was stated in the plaint that the money was borrowed by the defendant as manager of a joint Hindu family and the plaintiff prayed for a decree against the mortgaged property as well as against the joint family. On 18 12 1934 the appellants made an application before the Subordinate Judge under O.1, R. 10 and O. 34 R. 1. Civil P. C. praying that they might be added as parties defendants to the suit and he points in issue arising therein might be decided in their presence. It was asserted in the petition that Baldev Das was not the manager of a joint family and that the family properties had been partitioned by a decree of the Court, as a result of which the properties alleged to be the subject-matter of the mortgage were allotted to the share of the petitioners.

In reply to this petition, the plaintiff s counsel stated in Court 7-2-1935 that his client would give up the claim for a mortgage decree against the properties in suit and would be satisfied only with a money decree against Baldev Das personally. The plaint was amended accordingly, deleting all reference to the joint family and abandoning the claim against the mortgaged property. Upon this the appellants withdrew their application for being made parties to the suit and reserved their right to take proper legal action if and when necessary. On 17-4-1935, Baldav Das died and on 2nd September following the appellants as well as their mother, who figures as respondent 5 in this appeal, were brought on the record as legal representatives of Baldev Das. On 9-10-1935 the appellants filed a written statement in which a number of pleas were taken in answer to the plaintiff s claim and it was asserted in para 10 of the written statement that Baldev Das dealt in Badra or speculative transactions and if any money was due to the plaintiff at all in connection with such transactions the debt was illegal and immoral and not binding on the family property.

On the same day the Court recorded an order to the effect that as the plaintiff had given up her claim for a mortgage decree, the legal representatives of the deceased could not, be allowed to raise pleas relating to the validity or otherwise of the mortgage. On 20-11-1935 the partie