1. This revision petition is directed against the order of the Subordinate Judge's Court, Guntur, allowing E. a. 854/68, in O. S. 56/66.
2. That is a petition filed by the 1st respondent in the Court below for sending for a sum of Rs. 8,925.95 from O. S. 124/67 on the file of the same court to the credit of O. S. 56/66.
3. The materials facts of the case are not in dispute. The 1st respondent in the revision petition filed O. S. 56/66 in the Subordinate Judge's Court, Guntur for recovery of money due to him on a promissory note from the 2nd respondent. At that time the judgment-debtor had no sons, but a son was born to him after the filing of the suit. Pending the suit and before the judgment, the 1st respondent got a house belonging to the 2nd respondent attached. The suit was later decreed. In execution of the decree the 1st respondent got the house property sold on 5-12-1966. The petitioner before me filed another suit O. S. 124/67, against the 2nd respondent on the file of the same Court on the foot of a promissory note and obtained a decree. But by the time he filed the suit a son was son to the debtor. The son was also impleaded as a party. After obtaining the decree the petitioner attached the same house property that was under attachment in O. S. 56/66. A creditor filed L. P. 6/67 for adjudicating the 2nd respondent as insolvent. Even by that time the house property was sold in Court auction for an amount of Rs. 30,219 after deducting the poundage. That was standing to the credit of O. S. 56/66. The petitioner got attached a portion of the amount out of the half share belonging to the judgment-debtor's son, which was in the Court deposit, because the other half-share belonging to the judgment-debtor, who had been declared an insolvent, was retained in court for the benefit of the general body of creditors. That was done pursuant to the order made in E. A. 44/68. Then the petitioner filed E. A. 427/68 to send for the amount from O. s. 56/66 to the credit of his own suit. He however, did not make the 1st respondent a party to this petition. The Court allowed E. A. No. 427/68 and in pursuance of the order therein the amount of Rs. 8,000/- and odd was credited to O. S. 124/67. Coming to know of this the 1st respondent filed Ex. A. 854/68 seeking an order to send back the amount wrongly credited to O. S. 124/67 out of the sale proceeds on O. S. 56/66 and to distribute half of the sale proceeds representing the minor's share rateably between himself and the decree-holder in O. S. 124/67. The petitioner also filed E. A. 581/69 for the issue of a cheque for the amount already brought to the credit of O. S. 124/67. The Court below heard E. A. 854/68 along with E. A. 581/69 and upholding the contentions of the 1st respondent granted E. A. 854/68 and dismissed E. A. 581/69. The present revision petition has been filed against the order allowing E. A. 854/68. I am informed that the petitioner has filed another revision petition against the dismissal of his E. A. 581/69 also, but that has not been brought up before me now.
4. To state the respective contention of the two decree-holders viz., the petitioner and the 1st respondent, the 1st respondent contends that he obtained a decree against the father and he is entitled to execute that decree against the son also though the son was not a party to the decree. Further, the son was not born when the filed the suit and it is not the case of the judgment-debtor that there was a partition between the father and the son. He got the house property attached even before judgment and it was he that got the property sold in execution of his own decree. The sale proceeds were realised and credited to the account of his own suit. The petitioner who is no other than another creditor is not entitled to the exclusive payment of the entire amount to the detriment of the 1st respondent. Both of then are entitled to ratables in the amount available.
5. On the other hand, the petitioner's contention is that inasmuch as he has obtained a decree not only against the father but also against the son, he is entitled to be paid off in preference, to the 1st respondent from out of the son's share of the sale proceeds.
6. In the light of these contentions the lower Court framed the following point for consideration.
'Whether in the circumstances of the case, the decree-holder in O. S. 124/67 is entitled to be paid off first in preference to the decree-holder in O. S. 58./69 out of the minor's half share in the sale proceeds'.
7. The first respondent no doubt obtained a decree against the father alone and levied execution also against him alone. But it is to be remembered that the judgment-debtor and his son constituted a joint family. That is common case. When the suit was filed by the 1st respondent, the son was not born. Therefore it can not be said that the 1st respondent had failed to add the son as a defendant to the suit. The 2nd respondent-judgment-debtor is the kartha of the family and execution can be levied against him alone. This is well-settled by the decision of the Supreme Court in Jakati v. Borkar, : 1SCR1384 . wherein it was held that in execution proceedings it is not necessary to impleaded sons or to bring another suit if severance of status takes place pending the execution, because the pious duty of the son continues. It follows that a money decree passed against the father is a debt payable by the son also if the debt is no tainted by any immorality. The creditor would be entitled to recover the dues by attachment and sale of the entire coparcenery property including the son's share therein, thought the decree has been obtained against the father alone without impleading the sons. When property is sold in execution of a decree obtained against the father alone, the son's share must also be deemed to have been sold, because it is joint family property and the debt is binding on the son as well.
8. From the above it is evident that the petitioner is not placed in any better or privileged position as a creditor of the 2nd respondent than the 1st respondent. Both their debts are binding on the 2nd respondent and also his son. The judgment-debtor and his son are bound to discharge the debt from the joint family property. The 1st respondent is entitled to proceed against the son's share as much as the petitioner is entitled. Therefore there is no reason at all why the petitioner should have a priority in payment out of the sale proceeds.
9. Further, the equities of the case also support the same conclusion. It was the 1st respondent that got the house property attached first and also got the property sold in Court auction and got the sale proceeds credited to the account of his suit. It would be unjust and inequitable if after all this the 1st respondent is deprived of the fruits of his decree in execution proceedings and the petitioner is permitted to walk away with the money.
10. An objection seems to have been taken before the lower court by the petitioner that since the 1st respondent did not raise any objection in E. a. 44/68, he cannot now claim ratables in the son's share. The lower court took the view---- and in my opinion rightly------ that the failure on the part of the 1st respondent to raise any objection in E. A. 44/68 is of no consequence and does not adversely affect his right to claim ratables in the son's share. E. A. 44/68 was filed by another creditor of the father to retain the father's half-share for the benefit of the general body of the creditors. But the 1st respondent is not now claiming any share in the amount retained in the insolvency court. His claim is only in regard to the sons half share. Therefore his failure to raise any objections in E. A. 44/68 does not affect his rights.
11. It is also important to note that when the petitioner sought a transfer of the amount to his own suit in E. A. 427/68, the 1st respondent was not made a part to it and was deprived of an opportunity to raise objections thereto. When he came to know of that transfer, the 1st respondent filed E. a. 854/68 which is quite reasonable and just.
12. Yet another objection raised by the petitioner to the relief sought by the first respondent is that once an order for payment out has been made by the Court, whatever amount that has been ordered to be paid out belong to the person to whom the money is ordered to be paid. But this ignores that attachment of the house before judgment was made at the instance of the first respondent. The attached house was sold in execution of his decree. Further he was not a party and not heard before the earlier transfer of the amount was made to the account of O. S. 124/67. Therefore, the earlier transfer of the amount does not bind the first respondent. For the aforesaid reasons the trial Court allowed the first respondent's E. A. No. 854/68. They are all convincing grounds and I am in agreement with them. The revision filed by the petitioner is, therefore, without merits and is accordingly dismissed with costs.
13. Revision dismissed.