Aditya vs Bank of India - 1977 Supreme(MP) 512

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : A.K Chitle.
For the Respondent: S. C. Bagdia.

Headnote:(1) Hindu Law - joint family - debts - personal decree on father who was partner of a firm - member of coparcenary - son are liable if debt is not immoral - father's undivided share including the shares of his sons can be sold.
       (2) Civil Procedure Code, 1908 - O.21, R. 50 (1) (b) and (c) - decree being executed against one of the judgment debtors by attachment and sale of the Judgment debtor's son's interest in the joint family property - O. 21, R. 50 not attracted.
       Short Note
       1. The appeal was directed against the order dated 31 - 8 - 1977 passed by the learned District Judge Indore.
       2. Held : Having heard learned counsel for the parties, this Court has come to the conclusion that this appeal deserves to be dismissed. The learned counsel for the appellant contended that as decree was passed against Pradeep Kumar Singh, father of appellant 1 and 2, in his capacity as a partner of the Firm M/S Onkarchand Kasturchand, the doctrine of pious obligation could not be invoked to enable the decree - holder to attach and sell the share of the applicants in the joint Hindu family property. The contention cannot be upheld. It is not disputed in the present case that a personal decree has been passed against Pradeep Kumar Singh, father of appellants Nos. 1 and 2 and that the decree was not based on a debt which was for an immoral or illegal purpose. The lower Court was right in holding that the objection preferred by the applicants to the attachment and sale of the property was untenable. Siddheshwar Mukerjee v. Bhubneshwar Prasad, AIR 1953 SC 487 relied on.
       3. It was then urged that before proceeding to attach and sell the interest of the applicants in the joint property; the lower Court should have proceeded under Order 21, rule 50 (2) of the Code of Civil Procedure. This contention again has no force. The provisions of Order 21, rule 50 (2) of tile Code of Civil Procedure are not attracted in the instant case. The provisions are applicable when the decree - holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub - rule (1) clauses (b) and (c) of Order 21 rule 50 of the Code of Civil Procedure, as being a partner in the firm. In this case, the decree is being executed against Pradeep Kumar Singh; one of the judgment - debtors, by attachment and sale of the applicants' coparcenary interest in the joint family property. The question of applicability of Order 2, rule 50 (2) of the Code of Civil Procedure does not, therefore arise.
       Appeal dismissed.