( 1 ) THIS is an appeal against the judgment and decree of the learned Civil Judge, Agra, disallowing the objection of the appellants under Order XXI, Rule 58, C. P. C. and Section 47 C. P. C. , that their share in the joint family ancestral property was not liable to attachment and sale in execution of a simple money decree which had been obtained by the respondent against their fathers Madan Gopal Chandrabhan and Jagannath Prasad Chandrabhan.

( 2 ) IT appears that the decree-holder Messrs. Bhimraj Harlalka filed a Suit No. 3263 of 1947 in the high Court of Judicature at Bombay for the recovery of a certain sum of money on the basis of accounts against Madan Gopal Chandrabhan and Jagannath Prasad Chandrabhan, and Indar gopal, Vijay Gopal and Raj Gopal sons of Madan Gopal Chandrabhan, and Amar Nath, son, of jagannath Prasad Chandrabhan. Learned counsel for the plaintiff stated during the pendency of the case after the evidence of the plaintiffs witnesses had been recorded, that he restricted his claim only against the defendants 1 and 5, namely, Madan Gopal Chandrabhan and Jagannath prasad Chandrabhan and that he did not wish to ask for a decree against the remaining defendants. On the basis of this statement the High Court passed a decree against the defendants 1 and 5 only and dismissed the suit against the remaining defendants. Thereafter, an application for the execution of the decree was made in the Court of the Civil judge, Agra, for the realisation of the decretal amount by attachment and sale not only of the interest of the judgment-debtors Madan Gopal Chandrabhan and Jagannath Prasad Chandrabhan but also of the interest of the present appellants and Raj Gopal,. e. the entire joint family property belonging to them. Two objections were filed, one under Order 21, Rule 58 C. P. C. by raj Gopal and the other under Section 47 C. P. C. by Vijay Gopal, Indar Gopal and Amar Nath. It was contended that the debt on the basis of which the simple money decree had been passed against Madan Gopal Chandrabhan and Jagannath Prasad Chandrabhan never existed and, in the alternative, it was of a gambling nature and was tainted with immorality. They did not produce any evidence in support of their contention. It was also contended there that as the suit against the objectors had been dismissed their share in the joint family property could not be attached and sold in execution of the simple money decree against Madan Gopal chandrabhan and Jagannath Prasad Chandrabhan. The learned Civil Judge did not accept the contention on behalf of the objectors that they were not liable for the payment of the decretal amount to the extent of their share in the joint family ancestral property. He, therefore, dismissed both the objections and it is against that order that the present appeal has been filed.

( 3 ) IT may be mentioned here that the appeal was filed as First Appeal from order only by three of the objectors, namely, Indar Gopal, Vijay Gopal and Amar Nath. At the time of the hearing of the appeal it was discovered that no First Appeal from Order lay and when this defect was pointed out to the learned counsel for the appellants they made a request that the appeal might be treated as Execution First Appeal from the decree of the lower court and we accordingly accepted this request and directed that the appeal may be treated as Execution First Appeal.

( 4 ) IT was contended on behalf of the appellants that in view of the fact that they were parties to the original suit and that the suit had been dismissed against them their share in the joint family property could not be attached and sold in execution of a simple money decree which had been obtained against the judgment-debtors. It was further contended that in view of the provisions contained in Order XXIII, Rule 1 (3), C. P. C. the decree-holder was precluded from instituting any fresh suit in respect of such subject matter or such part of the claim which had been abandoned b