The decree obtained by the creditor in a suit which is not alleged to be collusive or fraudulent, gives rise to a fresh liability of the father, and the decree debt itself is a distinct and independent source of the pious obligation of the sons, no attempt to impugn the decree can be countenanced.

( 1 ) A question having arisen whether the decision in \lakhsmadu v. Ramudu, ILR (1940) Mad 123 = (AIR 1939 Mad 867), requires reconsideration, this Second Appeal, which was heard in the first instance by one of us (Parthasarathi J) was referred to a Division Bench consisting of Venkatesam and Kondayya, JJ. they shared the view that the above-mentioned decision requires to be re-examined as it is inconsistent with the decision of a Full bench in Perisasami Mudaliar v. Seetharama Chettiar, (1904) ILR 27 Mad 243. Accordingly, the entire case was refered by them for consideration by a Full Bench.

( 2 ) IN addition to the question specifically dealt with in the order of reference. Other matters were also argued before the Division Bench, as also at the earlier stage. On an examination of the position, we have come to the conclusion that this appeal has to be decided on a ground which renders it unnecessary to consider whether the authority in ILR (1940) Mad 123 = (AIR 1939 Mad correct principle of law. The facts of the case and the question debated before us may now be set out.

( 3 ) THE plaintiff in a partition action is the appellant in this second appeal. The plaintiff and the defendants 7 to 9 are brothers, and their father is the 10th defendant. The defendants 1 to 5 are the sons of one Sundaraama Reddi who is now dead. The deceased obtained a decree in O. S. against the 10th defendant and some others. The 6th defendant was impleaded in this action a judgment creditor of the 10th defendant, whose decree in O. S. Nos. 151 and 153 of 1956 was impugned by the plaintiff. For the purposes of this appeal, no further reference need be made to the 6th defendant.

( 4 ) THE plaintiff pleads, inter alia, that there was no debt due to Sundarama Reddi by his father and that the decree in O. S. No. 119 of 1956 does not impose any binding obligation on him and his brothers and that the properties of the family are to be partitioned on the footing that the decree debt does not bind the junior coparceners. The decree debt has devolved on the defendants 1 to 5 after the death of the original decree-holder, and in enforcement of the decree, they had an item of the property sold.

( 5 ) AS generally happens in suit of this description, the father chose to remain absent and took no part in the proceedings. The brothers of the plaintiff (defendants 7 to 9) supported him. The defendants 1 to 5 resisted the suit and pleaded that the 10th defendant guaranteed the repayment of a debt due by one Venkatasubbaya and his son. A letter of guarantee dated 22-3-1954 was executed by the 10th defendant and another person. The principal debtors wanted time for payment, and the creditor (father of the defendants 1 to 5) gave him time for payment on condition of the debtors obtaining guarantee as to repayment. Pursuant to the understanding, the debtors made a promissory note agreeing to pay the debt; and the guarantors, the 10th defendant and another, passed on the same date, a letter of guarantee. The creditor sued on foot of the promissory note and the guarantee and obtained the decree in O. S. No. 119 of 1956, Where under the 10th defendant was made liable for the satisfaction of the debt.

( 6 ) THE trial Court negatived the plea of the plaintiff and his brothers, held that the decree debt in O. S. No. 119 of 1956 was binding on them, and granted a preliminary decree for partition, subject to the liability of the junior members to discharge the decretal liability.

( 7 ) ON appeal, the learned District Judge Nellore, confirmed the decision of the trial Court. The case pleaded by the defendants 1 to 5 that the 10th defendant undertook the liability as guarantor as part of the same transaction under which the creditor guaranteed time to the principal debtors by accepting a promissory note of theirs.

( 8 ) WHEN the second appeal was heard by a single Judge, a two-fold argument was presented for the appellant. It was contended that the finding that