JUDGMENT

1. This second execution of decree appeal arises out of the judgment and decree passed by the District Judge of fyzabad, dated 6th October 1938, dismissing the appellants' objection in appeal and setting aside the order of the Civil Judge of Fyzabad, dated 13th January 1938. The appeal arises in the following way. One Balmakund has two sons, Gokul Chand and Ram Chandra. Gokul Chand has two sons, Kesho Nath and Bishan Nath, appellants. Ram Chandra has two sons, Bhairon Nath and Badri Nath. On 14th August 1922 Gokul Chand and Ram Chandra executed a simple mortgage of certain properties in favour of Sital Prasad, the deceased husband of Mt. Ram Dulari. Sital Prasad having died Mt. Ram Dulari filed a suit on 27th April 1936 on the basis of the mortgage against Gokul Chand and Ram Chandra. In the suit Mt. Ram Dulari claimed the amount due on the mortgage by sale of the property. She also claimed a personal decree against Gokul Chand and Ram Chandra in the event of the sale proceeds being not found sufficient to satisfy the plaintiff's claim.

2. In para. 8 of his written statement, dated 10th July 1936 Gokul Chand pleaded that he and his brother formed a joint Hindu family with their sons, that the property in dispute was ancestral and joint family property and that the mortgage deed was without legal necessity and was not, executed for the benefit of the family, and a decree for sale could not therefore be made. He also mentioned that the sons of the two defendants were necessary parties to the suit in any case. On the same date two applications were made, one by the sons of Gokul Chand and the other by the sons of Ram Chandra, supporting the prayer contained in para. 8 of the written statement of Gokul Chand about impleading the defendants' sons as parties to the suit. It was stated in these applications that unless the sons were made defendants, their interests would be prejudicially affected. The plaintiff did not oppose the prayer for the sons of Gokul Chand and Ram J Chandra being made co-defendants. Accordingly on the same day the Court ordered that the sons of defendants 1 and 2 be made co-defendants, and the plaint be amended accordingly. The newly made defendants were also directed to file written statements. The plaintiff amended the plaint by adding another relief which was to the following effect that if the relief in para, l, namely, the recovery of money by the sale of the mortgaged property be not granted for some reason or other, then a simple money decree may be granted in favour of the plaintiff against all the defendants, or at any rate against defendants 1 and 2.

3. The learned Civil Judge held that the property covered by the mortgage was ancestral and joint family property of all defendants 1 to 6, that there was no legal necessity for the execution pf the mortgage in suit and that the transaction as a mortgage failed altogether. He also held that the plaintiff was entitled to a money decree under Section 65, Contract Act, against the executants of the mortgage deed, namely, against defendants 1 and 2 only, and consequently decreed the suit against them alone. As regards defendants 3 to 6 the Court ordered the claim to be dismissed. On 6th April 1937, the decree-holder-respondent filed an application for execution of the decree against the entire joint family property. The appellants, who are the sons of Gokul Chand, filed objections under Section 47, Civil P.C., opposing the application for execution on the ground that as the decree-holder's claim had been dismissed against them the decree-holder could only get the right and share of the judgment-debtors attached, and not the share of the objectors. The learned Civil Judge of Fyzabad relying upon the authority in Bijai Raj v.Ram Padarath, A.I.R. 1936 Oudh 139, held that as the decree in execution was passed in a suit in which the objectors were impleaded as defendants, and the decree was passed personally against Gokul Chand and Ram Chandra, and the c