Patanjali Sastri, J.-These connected appeals, though arising out of two suits tried separately by different Subordinate Judges, are aimed at securing the same relief to the appellants-plaintiffs, viz., a declaration that a Court-sale held in execution of a decree obtained against their father is not binding on their shares in the property sold. The plaintiffs and their father are admittedly members of a joint Hindu family. The father and his brother since deceased borrowed Rs. 2,500 from the Madras People’s Bank, Ltd., (in liquidation), executing a promissory note dated 19th January, 1938. The bank sued for recovery of the amount due and obtained a decree against the executants. The plaintiffs were not made parties to the suit. In execution of the decree the house now in question which admittedly belongs to the joint family was attached on 21st June, 1939, and on the following day the Court struck off the execution proceedings ordering however, that the attachment was to subsist for four months. Within that period the bank filed afresh execution petition on 16th October, 1939, and, after sundry procedure consequent on the bank going into liquidation and the Official Liquidator being brought on record, the attached property was brought to sale on 23rd March, 1942, and was purchased by one Sundararaja Pillai. The sale was confirmed on 26th June, 1942, and delivery of possession was ordered on 29th March, 1943. Thereupon the plaintiffs instituted the two suits out of which these appeals arise, O. S. No. 89 of 1942, in the Subordinate Judge’s Court, Madura, for partition and delivery of their shares in the family properties including the house now in question the sale of which they impeached as not binding on their shares, and O. S. No. 33 of 1944 in the same Court for setting aside the order for delivery referred to above and maintaining their possession of the house. The Court below upheld the sale in its entirety, and refused the relief sought by the plaintiffs in respect of the house. Hence the appeals.

The plaintiffs attacked the validity of the Court-sale on various grounds in the Court below, but Mr. Sitarama Rao appearing for the appellants pressed only two of them before us; firstly, the suit brought by the bank against the father having been based only on the promissory note and not also on the debt, and the plaintiffs not having been impleaded, the decree therein must be taken to have been passed personally against the father in his individual capacity and not as representing the other members of the family and that in execution of such a decree the father’s share alone in the property brought to sale can be deemed to have passed to the purchaser; and, secondly, inasmuch as the attachment was ordered to continue in force only for four months but the property was sold long after the expiry of the period, the sale was void as a subsisting attachment was an essential pre-requisite for a valid execution sale where the decree itself did not order a sale.

On the first point, our attention was called to the plaint in the bank’s suit to show that it was based solely on the promissory note of the father and not also upon the consideration, and it was urged that a decree obtained against the father alone in a suit framed in that form was not binding on the sons* shares in the family properties even under the pious obligation rule. It was not suggested that the decree represented an avyavaharika debt or that the father did not receive consideration for the note; but it was said that, having regard to the frame of the suit, the decree was not a debt to which the pious obligation of the sons under the Hindu Law could be extended. No authority was cited in support of this somewhat novel contention. It is true that no one could be made liable on a negotiable instrument unless his name clearly appears as the name of the person liable thereon (Sadasuk Jankidas v. Sir Kishen Prasad1)and it is also true that a distinction has to be made for

Click Here to Read the rest of this document