Dalip Narayan Singh and Another vs Raghunandan Prasad

Jwala Prasad Ag., C.J.—This is am appeal against an order of the District Judge of Monghyr who in disagreement with the view of the Subordinate Judge allowed the objection of the judgment-debtor u/s 47, Civil P.C. with the consequence that the decree-holder is limited in the execution of his decree to proceed against the family property of the judgment-debtors and not against their person and property.

Defendant 1 for self and as guardian of his minor sons defendants 2 to 4, executed a mortgage bond on 7th March 1928. The plaintiff sued on the bond but claimed only a simple money decree giving up his lien over the mortgaged property. Defendant 1 is the father of defendants 2 to 4. Defendant 2 is his major son and defendants 3 and 4 are minors. Defendant did not contest the suit. Defendants to 4, the sons of defendant 1, only contested the suit and they denied the genuineness of the bond and the passing of consideration and pleaded that they were not liable to pay, as the loan was not contracted for the benefit of the joint family. The plaintiff''s case was that the bond was executed for carrying on a contract business of the family and by the loan all the members of the family were benefited including defendants 2 to 4. The Court held that the bond was genuine and for consideration and that defendants 2 to 4, the sons of defendant 1, were liable inasmuch as they were benefited by it. The Court observed:

At present it is enough to hold that the debt in suit is also binding on defendants 2 to 4 not only because they are the sons of defendant 1 living jointly with him but also because the debt was contracted for the conduct of the contractor''s business which the family carried on for its living.

Upon this finding the Court passed a decree against all the defendants. It however did not decide whether the defendants were liable personally or only their interest in the. joint family property was liable. The Court said:

This is not the time for the consideration of this question.

Obviously the Court was wrong for it ought to have decided that point at that stage and in fact by its finding that the debt was contracted for the benefit of the family the Court practically held that defendants 2 to 4 were also personally liable for the debt. Upon this judgment a decree was passed making all the defendants liable for the debt.

An executing Court is bound to execute the decree as it stands and cannot go behind it. As such all the defendants including defendants 2 to 4 are personally liable to pay up the decretal amount. Defendant 2 whose salary was sought to be attached in execution of the decree raised the contention that he was not personally liable but that the family property should have been proceeded against. His contention is that the Court which passed the decree left the question open. At best he is entitled to show that he is not personally liable. He has not shown that.

On the other hand the judgment shows that he was liable to pay the debt not only upon the ground that as a son it was his pious duty to pay the debt of his father but as a matter of fact he was benefited by the loan. He does not show that the debt was not a family debt and did not go to benefit him. The decision relied upon in the case of Nathuni Sahu v. Baijnath Prasad [1916] 2 Pat LJ 212 does not help defendant 2 inasmuch as in that case it was found as a fact that the debt was not incurred for the benefit of the sons and they were made liable only upon the ground of their pious duty to pay the father''s debt unless they could show that it was immoral or illegal. In that very case a distinction was drawn between the case where the debt is proved to be actually for the benefit of the sons and a debt which is shown not to be for their benefit but that they are made liable only under the doctrine of pious duty.

We therefore set aside the decision of the Court below and restore that of the Subordinate Judge. The appeal is decreed with costs.

James, J.

I agree.