Venkatasubba Rao, J.

1. This appeal has been brought against an order made by the lower Court, refusing execution against the respondent. The decree that was sought to be executed was one passed in 0. Section No. 7 of 1922 inter alia against the respondents father, who was defendant No. 5 in the suit. Into the chequered history of ,that suit, it is unnecessary to enter; it is sufficient to state for the present purpose, that the suit itself was commenced in 1919 (it was originally numbered as 96 of 1919), that a decree for possession was passed against defendant No. 5 in May 1933, that in execution of that decree the plaintiff obtained possession of the lands in October of the same year and that by a further judgment delivered on April 3, 1935, mesne profits were awarded against defendant No. 5 who subsequently died in the following June. (To avoid confusion it may be stated that the formal decree drawn up in respect of mesne profits bears a later dale, namely July 22, 1935, but that is a circumstance which is immaterial;. The plaintiff-appellant applied for execution in February 1936, praying first, that the respondent (i.e., defendant No. 5s undivided son) might be brought on the record as his legal representative and secondly, that the decree for mesne profits might be executed against the co-parcenary property in his bands. The respondent contested the plaintiffs right, relying upon a partition said to have been entered into on February 1, 1931, between his father and himself. The facts alleged by him are these: Under the partition the lands in dispute along with certain other items of co-parcenary property were allotted to the father who two days later settled these properties upon his wife (the respondents mother) by a deed of gift dated February 3, 1931. He contended that in those circumstances the decree passed against his father could not be executed against the joint family property which fell to his share. This contention the lower Court, upheld, finding as a fact that the partition set up was a genuine transaction. The plaintiff, who has filed this appeal, impeaches the correctness of the learned Subordinate Judges order.

2. It may be convenient to set out here a few more facts connected with O.S. No. 7 of 1922. Along with defendant No. 5 his two adult sons were impleaded as defendants Nos. 6 and 7, but the respondent himself was not joined, he being then an infant. Those two sons put forward an oral partition alleged to have been entered into between themselves and their father in 1912. They asserted that they were not in possession of any of the items claimed, as the entire lands in dispute bad been allotted to their father. Their contention was accepted and they were exonerated. So far as the plaintiffs claim to mesne profits was concerned, as the decree awarded profits only from 1910 onwards, defendants Nos. 6 and 7 were held not liable, apparently on the ground that the mesne profits decreed were in respect of a period subsequent to the partition: see the order embodying the finding at p. 172, and the judgment of Ramesam, J. at p. 153 of the Privy Council Pleadings Book. Pausing here for a moment the fact that emerges from this brief narrative is that defendant No. 5 was sued as representing the family in respect of his joint family property. In fact the addition of defendants Nos. 5 and 7 makes no difference as the claim against defendant No. 5 was in essence one made against him as representing his branch of the family. The view that prevailed in the suit was, that defendants Nos. 6 and 7 possessed no interest in the joint family property and should therefore, be regarded as having been unnecessarily impleaded. The following passage bearing on this point from the order embodying the finding may in this connection be quoted:

Coming now to defendants Nos. 5 to 7, they form one group. Defendant No. 5 is the father and defendants Nos. 6 and 7 are his sons by his first wife. Defendant No. 5 has another son b