Property that has fallen to the sons in a partition subsequent to a decree obtained against the father cannot be attached in execution of that decree.

Walsh, J.

1. Defendants 2 and 3 are the appellants in this second appeal which arises in the following way : A decree was obtained in O.S. No. 34 of 1917 against defendant 1 who is the lather of the present appellants. An attempt was made in execution to sell the property in 1920 and an attachment petition was put in but it was dismissed for default of prosecution. In 1924 another application to attach these properties was made and the present appellants put in a claim, petition Ex. 6 on 23rd October 1924 alleging that subsequent to the decree there had been a partition between them and their father and they had been in possession of the properties that fell to their share and these properties could not be attached in execution proceedings for a decree obtained against their father. That claim was allowed the decree-holders pleader reporting no instructions. The respondent who subsequently got an assignment of this decree put in an execution petition, E.P. 616 of 1925, to attach and bring to sale the same properties. The appellants put in a second claim petition repeating their earlier plea and taking a further plea that as no suit had been instituted to set aside the order passed on their previous claim petition the respondent was not entitled to make the attachment. This claim petition was allowed on 9th March 1920 and the present suit was filed to sot aside the order on this latter claim petition. The trial Court upheld the contention that the order on the second claim petition was correct as no suit had been instituted against the order on the first claim within a year. So far as the appellants were concerned the suit against them was dismissed in the trial Court. In the lower appellate Court the learned Judge agreed with the view that the order on the first claim petition had become final and therefore the order on second claim petition was correct except as regards item No. 17, which he said had not been included in the previous claim petition. It may be noted that this point had not been raised either in the trial Court or in the memorandum of appeal preferred to the lower appellate Court. He held that this item was liable to be attached in satisfaction of the decree obtained against defendant 1.

2. Two questions are raised in this second appeal on behalf of the appellants. The first is that the lower appellate Court is wrong in saying that item No. 17 was not included in the first claim petition Ex. 6. The second, argument is that assuming that it was not included, nevertheless, it is not liable in law to be attached. As I am clear that the appellants must succeed on the second point I need only say as regards the first that it appears to me doubtful that item No. 17 is not included in Ex. 6. Though the boundaries are different there appears to be only one house on the estate and Ex. 6 does include a house. If I did not hold that the appellants must succeed on the second point of law I should have been obliged to refer this question back for further finding as : to whether certain boundaries given in Ex. 6 include item 17 or not. However, as I feel no doubt that the appellant must succeed on the second point I need not discuss this matter further. The learned District Judge in para. 17 seems not to have recognised the distinction between the liability of property in the hands of sons after partition to be seized in satisfaction of their fathers debts with the mode in which the said seizure can be effected. The decision in Kameswaramma v. Venkatasubba Row 1914 Mad. 328, makes it clear that where there has been a partition subsequent to a decree obtained against the father only, the property which has fallen to the sons in the partition cannot be attached in execution of that decree.

3. In the earlier case Krishnaswami Konan v. Ramaswami Ayyar (1899) 22 Mad. 519, it had been held that where the partition was prior to the decree the property in the hands of the sons could not be attached in satisfaction of the decree