The main legal point established in the judgment is that a fair family partition, not intended to defeat or delay creditors, is not liable to be set aside under Section 53 of the T. P. Act. Additionally, the terms of an order granting leave for execution can preclude a party from claiming relief against family properties.

Patanjali Sastri, J.

1. This appeal has been brought by the plaintiff, a firm of Nattukottai Chetty money-lenders and bankers, from a decree of the Court of the Subordinate Judge of Sivaganga dismissing their suit for setting aside an order whereby the four-sixths share of respondents 1 to 4 in their joint family property was released from attachment in execution of an order for restitution passed by the High Court of Judicature at Rangoon. Respondent 5 was impleaded pro forma as the receiver appointed in certain proceedings which were pending between the partners of the appellant firm, and no further reference will be made to him herein. The respondents father Subramaniam Chettiar who was carrying on business as banker and money-lender at Rangoon and other places under the name and style of "AT. K. PL. SP. Chettiar Firm" sued the appellants and others in the High Court at Rangoon in its original jurisdiction for recovery of Rs. 20,000 and obtained a decree on 27th July 1931. The appellants preferred an appeal to the same Court in its appellate jurisdiction on 17th August 1931, and pending the appeal deposited the decree amount in Court on 2nd December 1931, as one of its partners was arrested in execution of the decree. The money was drawn out by the decree-holder on the same day and the execution proceeding was closed. On 11th May 1933 the appeal was allowed and the suit brought by the respondents father was dismissed so far as the appellant firm was concerned. Thereupon the latter applied for restitution of the sum of Rs. 20,000 with interest and obtained an order for payment of Rupees 22,690 with further interest at nine per cent. till realisation together with costs of the application. This order was passed on 10th July 1933. As no payment was made in compliance with the said order, the appellants applied on 27th April 1936 for leave to take out execution. The application stated that respondents father Subramaniam Chettiar was trading under the name and style of AT.K. PL. SP. for the benefit of his family and that leave should be granted under the provisions of Order 21, Rule 50, Civil P. C, read with Order 30, Rule 10 to execute "the decree for restitution passed on 10th July 1933 by this Honourable Court" and the decree for costs in the appeal against "AT. K. PL. SP. Subramaniam Chettiar of Sirukudalpatti, Ramnad District. It may be mentioned here that the combined effect of the provisions referred to above is to render it necessary for a decree-holder who has obtained against a person carrying on business in a name or style other than his own name a decree in such name or style, to obtain the leave of the Court before executing the decree against any person whose position as the proprietor to the business has not already been established The provisions contemplate the adjudication of the liability of such person as the proprietor of the business where such liability is disputed before leave to execute is granted. As the appellants application alleged that the respondents father was carrying on the business under the name of "AT. K. PL. SP. Chettiar firm" for the benefit of his family and asked for leave to execute under the provisions specified, the respondents father filed a statement of objections contending (para. 4) that in the absence of the parties on whom the restitution order was said to be binding the Court could not adjudicate as to who are the persons liable and (para. 5) that the business of AT. K. PL. SP. Chettiar firm was not carried on behalf of and for the benefit of his family. To this the appellants filed a reply wherein they stated;

"The application is for execution against AT. K. PL.SP. Subramaniam Chettiar and no relief is claimed now against any others. The contentions do not, therefore, arise for consideration at the present stage." On this the Court passed the following order on 12th June 1936. "Both sides now agree that AT. K. PL. SP. Subramaniam Chettiar is carrying on business as the so