A decree obtained against the manager of a joint family will bind the members of the family even if they are not specifically impleaded in the suit.

CHANDRA REDDY, J. :-

This is defendants appeal. The action giving rise to this appeal was brought up by the respondents for setting aside the summary order passed by that Court on 12-7-1948 dismissing the claim petition in execution proceedings in O. S No. 7 of 1944 on the file of the Sub Court and for other incidental reliefs. The circumstances leading up to this appeal may be set out in brief.

2. The appellant filed O. S. No. 18 of 1942 in the District Court, Anantapur which was subsequently transferred to the Sub Court and numbered O. S. No. 7 of 1944. That suit was for recovery of damages in a sum of Rs. 10,022-10-6 for alleged breach of contract dated 28-11-1949 whereby the plaintiffs agreed to deliver to the defendants 100 bales of yarn at a price of Rs. 10-8-0 per bundle. The answer to the suit was that the contract was a wager and consequently unenforceable. This defence found favour with the trial Court. But on appeal the suit was decreed in reversal of the trial Courts decree. The learned Judges of the Madras High Court expressed the opinion that the suit contract was not by way of wager and breach of it would give a cause of action for damages.

In execution of this decree the properties in dispute were brought to sale. The plaintiffs intervened by an application under O. 21, R. 63, C. P. C. setting up a case that the properties had fallen to their snare on the basis of the partition deed, Ex. A-1 referred to in connection with the other appeal and not liable to be attached for the debts due by their father. This claim was disallowed and the matter was carried in revision to the High Court unsuccessfully.

3. The basis of the suit was that the debt for the realisation of which the properties were attached was an Avyavaharika debt having been incurred in connection with a speculative and hazardous trade of the father, that the partition was true, valid and therefore, binding on all the defendants and consequently the shares of the plaintiffs were not liable for the decree debt and that lastly they were not bound by the decree as the suit was filed against their father in his individual capacity.

4. The suit was defended on the plea that the debt was not an Avyavaharika debt, that the partition deed relied on by the plaintiffs evidenced a sham transaction brought about to defraud the defendants, that in any event the suit properties were the separate properties of the 6th defendant and even otherwise they were answerable for that debt because they were all earned by the father out of his business.

5. The trial Court while answering the issue in regard to the nature of the debt against the plaintiffs decreed the suit as it thought that the only remedy of the defendant was by way of a suit since the properties were allotted to the shares of the plaintiff in the partition which, in its opinion, was an effective one. Dissatisfied with this judgment, the decree-holders preferred this appeal.

6. The finding of the trial Court as regards the binding nature of the debt was not assailed before us by the respondent except as a part of the general theme that the plaintiffs are under no obligation to discharge any of the debts of their father which were contracted for a speculative trade. We have dealt with this matter in the other appeal and this need not be considered afresh. Further, no evidence was adduced to show that this debt arose out of a wagering contract as suggested for the father in the earlier suit.

That is obviously because there could not be any defence on that ground since the terms of the contract as culled out in the judgment of High Court establish that delivery of the goods was contemplated and in fact Nagappa the defendant therein was called upon to take delivery of the goods and it was only when he failed to comply with that demand that the goods were sold at his risk and compensation claimed by way of difference between the prices. It must therefore be taken that the debt was not vitiated in any way and con