Govinda Menon, J.-Krishnaswami Nayudu, J., expressing the opinion that there is a conflict between the decisions in Kunhappa Nambiar v. Shridevi Kettilamma1 , and Kunhi Kannan v. Soopi2, on the one hand and the Full Bench decision in Venkatanarayana v. Venkata Somaraju3, on the other has referred this second appeal to a bench and that is how it comes before us.

The appellant was the petitioner in an application under Order 34, rule 6 of the Civil Procedure Code for a personal decree in O.S. No. 505 of 1936 on the file of the District Munsif, Tellicherry. That application was allowed by the trial Court but in appeal the learned District Judge set aside the personal decree passed by the trial Court and dismissed the application R.M.P. No. 47 of 1942.

The facts are shortly these: The appellant was a tenant under the tarwad of the respondent and because the land revenue on the leased property had not been paid by the jenmi he was compelled to pay the same and thereafter O.S. No. 505 of 1936 was brought as a mortgage suit for the recovery of the amount paid by him by sale of the rights of the jenmi. To that suit the karnavan of the tarwad representing the family as such, was the only defendant. A preliminary decree, Exhibit A-1 was passed on 30th July, 1937, for realisation of the amount claimed by the sale of the jenmi’s rights in the holding and the final decree was passed on 1st December, 1937 (Exhibit A-2). No member of the tarwad other than the karnavan was made a party to any of these proceedings. Thereafter execution was taken out and the property was sold on 23rd November, 1939, as a result of which only a part of the decree amount was realised. Even to these sale proceedings, only the sole defendant in O.S. No. 505 of 1936 was made a party.

Not being able to realise the full amount due under the decree, the appellant filed R.M.P. No. 47 of 1942 out of which the present second appeal arises for passing a personal decree against all the members of the tarwad so that the balance of the decree amount can be realised by atttachment and sale of other properties which belonged to the tarwad. This application was filed on 5th January, 1942. Pending O.S. No. 505 of 1936, some of the members of the tarwad had filed a suit for partition on 7th April, 1937, in which a preliminary decree, Exhibit B-1 had been passed on 31st December, 1938. In the preliminary decree there was a provision that the decree in O.S. No. 505 of 1936 represented a valid and binding debt on the tarwad and as such it should be discharged by the tarwad. The final decree in that suit was passed on 6th April, 1940, in and by which the decree debt in O.S. No. 505 of 1936 was allotted to the share of respondents 2 and 3 in the present application.

For the passing of the personal decree, objection was taken that as to the execution proceedings in O.S. No. 505 of 1936, persons who were members of the tarwad which became disrupted by the filing of the partition suit on 7th April, 1937, had not been eo nomine made parties and as the quondam karnavan had lost his representative capacity by the time the execution petition had been filed, the sale proceedings were void and therefore, the condition precedent to the application for the passing of the personal decree had not come into effect and hence R.M.P. No. 47 of 1942 should be dismissed. The Court of first instance disagreed with this contention on the ground that the only objection taken before it was about the validity of the decree and that having been found against the petition was maintainable. The trial Court set out the contention thus:

“The respondents, therefore, now cannot be heard to say that the decree is invalid and vitiated because all the members of the tarwad were not impleaded in O.S. No. 505 of 1936 consequent on the disruption of the status of the judgment-debtor as the karnavan and manager. This was the vital objection canvassed before me in these proceedings against the validity of the decree in question

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