Jagannadha Rao, J.
1. The defendants 3, 6, 7 and 23 are the appellants in this appeal which is directed against the judgment and decree in O. S. No. 32/57 on the file of the Court of the Subordinate Judge, Vijayawada. The suit was originally filed in forma pauperis as O. P. No. 61/55 but later on the plaintiff paid the court-fee. Initially the mother of the plaintiffs represented them as their next friend but later the maternal uncle of the plaintiffs came on records as their next friend in the place of the plaintiffs' mother. They have since become majors. The suit was filed for partition of the plaint schedule properties into three equal shares and for division by metes and bounds and for allotment of two such shares to the plaintiffs free from the claims of the defendants and for a permanent injunction against defendants 2 to 5 restraining them from executing their decrees against the shares of the plaintiffs.
2. The court below passed a preliminary decree for partition of the plaint schedule properties into three equal shares and for separate possession of two shares to the plaintiffs free from the claims of the defendants 2 to 23 against the two shares allotted to the plaintiffs. It also restrained defendants 3 to 5 and 7 and the respective legal representatives of defendants 8, 10, 12, (viz., D-11, D-13 to D-22 and D-23) by way of permanent injunction from executing their decrees against the plaintiffs' shares and further declared that the mortgage bond dated 30-4-1951 marked as Ex. B-3 was not binding on the plaintiffs' 2/3rd share and granted other reliefs with which we are not concerned.
3. The two plaintiffs are the sons of the 1st defendant. The 1st defendant was originally employed in the Imperial Bank till 1945 and later he resigned his job and set up a business by name 'The United Engineering Company' which he continued till 1955. Thereafter the 1st defendant's whereabouts were not known for a considerable time.
4. The 1st defendant who is the father of the plaintiffs executed a mortgage Ex. B-3 dated 30-4-1951 in favour of the 6ht defendant who is the wife of the 3rd defendant for a sum of Rs. 10,000/- in respect of items 1 and 2 of the plaint schedule which are two houses situated at Vijayawada. The mortgage was executed by the 1st defendant for himself and on behalf of his two minor sons who are the present plaintiffs. In the present suit the plaintiffs contend that the said mortgage covered by Ex. B-3 is not true and not binding on their shares in the hypotheca. On the other hand it is the contention of the 6th defendant mortgagee that the mortgage is true and valid and that it was executed by the 1st defendant for the discharge of antecedent debts in a sum of Rs. 7,000/- and that the remaining amount of Rs. 3,000/- was paid at the time of the mortgage and that therefore the said mortgage is binding on the plaintiffs.
The mortgagee-6th defendant filed a suit O. S. No. 100/63 in the Court below on the foot of the mortgage but the said suit has been stayed pending disposal of the suit O. S. No. 32/57 out of which this appeal has arisen. It is the case of the plaintiffs in the court below as well as in this Court that the mortgage suit O. S. No. 100/63 has been filed almost on the verge of limitation for a mortgage decree and that in any event the time for obtaining a personal decree against the 1st defendant, their father, elapsed long before the filing of the said suit and that therefore a declaration should be given that the plaintiffs' 2/3res share in the hypotheca cannot be proceeded against by the 6th defendant mortgagee even on the theory of pious obligation.
5. There are three other items of debtedness which resulted in simple money decrees and they are as follows: The 3rd defendant obtained a simple money decree in O. S. No. 186 of 1954 on 7-5-54 in the court of the District Munsif, Vijayawada for a sum of Rupees 2,321-1-11 against the 1st defendant father and the two plaintiffs who are his sons. The 7th defendant filed O. S. No. 265/55 on the file of District Munsif's Court, Vijayawada against the 1st defendant impleading the plaintiffs also as parties for recovery of Rs. 4,797-8-0 and costs and obtained a decree for money. The 2nd defendant filed a suit O. S. No. 41/54 on the file of the District Munsif's Court, Vijayawada against the 1st defendant for dissolution and accounts of a partnership and obtained a decree against the 1st defendant for a sum of Rs. 7,531-13-8 and costs, and the said decree was transferred in favour of the 23rd defendant.
6. The plaintiffs, in effect, want that their shares of ancestral property should be free from the mortgage covered by Ex. B-3 and that the said shares should not also be proceeded against in execution of the three money decrees above mentioned.
7. The court below came to the conclusion that the plaintiffs' shares in the hypotheca cannot be proceeded against by the 6th defendant mortgagee and that the decree-holders in the three money decrees above mentioned cannot also execute the said decrees against the plaintiffs.
8. In this appeal Sri P. Ramachandra Reddy, the learned counsel appearing for the appellants has contended that the view taken by the lower court in respect of the plaintiffs' liability to bear the joint family debts covered by the mortgage Ex. B-3 and the three money decrees is not correct. We shall deal with the mortgage at the out set and we shall take up the question of the liability under the three money decrees a little later.
9. As already stated the mortgage Ex. B-3 dated 30-4-51 was executed by the 1st defendant for himself and on behalf of his two minor sons (Plaintiffs) for a sum of Rs. 10,000/-. A suit on the mortgage has been filed as O. S. No. 100/63 and in now pending as it has been stayed under S. 10, C.P.C. The mortgage recites that the debt is incurred for purposes of expanding the business in Hardware good etc., that was being conducted by the 1st defendant under the name and style of United Engineering Company of India at Vijayawada. It recites that a sum ofRs. 7,000/- was received by the 1st defendant periodically and that the balance of Rs. 3,000/- has been received at the time of execution of the mortgage. It contains a personal covenant by the 1st defendant to discharge the debt and also contains recitals creating a mortgage on the two items of properties.
It is therefore contended by the learned counsel for the appellants firstly that a debt incurred by a father under Hindu Law is binding on his sons on the theory of pious obligation and that commercial debts incurred by a father in respect of a business started by him for the first time are binding on his sons whatever may be the position in Faqirchand v. Harnam Kaur AIR 1967 SC 727 even assuming that a personal decree is barred against the 1st defendant on the ground that the suit O. S. No. 100/63 might have been filed beyond six years from the date of the mortgage, still the mortgage decree as and when obtained against the 1st defendant father can be strainghtway executed against the shares of plaintiff in the joint family property without obtaining a personal decree against the father.
10. On the other hand it is contended by Sri J. V. Suryanarayana Rao, the learned counsel for the respondents-plaintiffs that a close reading of the mortgage deed Ex. B-3 which is in Telugu would disclose that the sum of Rs. 7,000/- was paid by the 6th defendant to the 1st defendant as part and parcel of the mortgage transaction covered by Ex. B-3 and that the borrowal of Rs. 7,000/- was not an antecedent transaction. According to him there was no debt antecedent in fact or in time as required under Hindu Law. So far as the second contention raised by the appellants is concerned the submission of the learned counsel for the respondents-plaintiffs in reply is that the case which arose before the Supreme Court in Faqir Chand v. Harnam Kaur (AIR 1967 SC 727) is a case where the suit was filed within six years of the date of the mortgage and that the observations made in that case have to be confined to cases where the mortgagee could obtain a personal decree against the father.
It is his further submission that the Supreme Court only emphasised that there was no need for the mortgagee to take out execution proceedings initially against the father's share in the hypotheca and then obtain a personal decree against the father for the balance for the purpose of proceeding against the sons, and that all that the Supreme Court stated was that the mortgagee decree-holder could straingtway proceed against the father and sons simultaneously without the need to obtain a personal decree against the father after exhausting the father's share in the hypotheca. In effect he contends that the Supreme Court only obviated the need for taking out execution proceedings twice.
11. We shall first advert to the question whether there is an antecedent debt in respect of the suit mortgage Ex. B-3. We may mention that initially the 3rd defendant who is the husband of the mortgagee filed a written statement in which he referred to the mortgage in favour of his wife but did not state that the said amount was received by the 1st defendant for the purpose of discharging certain hundies but the said case regarding hundies was built up later when the written statement of the 6th defendant was filed almost a year later. The Court below was also not prepared to accept the evidence adduced on behalf of the 6th defendant and that the hundies Exs. B-4 to B-12 were satisfactorily proved by the 6th defendant. In the light of the evidence and the finding of the lower court the learned counsel for the appellants, in our opinion, rightly did not contend that the sum of Rupees 7,000/- was received by the 1st defendant for the purpose of discharging the hundies Exs. B-4 to B-12. However, the learned counsel for the appellants Sri P. Ramachandra Reddy tried to interpret the language in Ex. B-3 mortgage to say that the payment of Rs. 7,000/- to the 1st defendant was anterior to the execution of the mortgage on 30-4-51 and that on that basis the mortgage was substantially for the purpose of discharging antecedent debts. He also contended that it was sufficient if a substantial portion of the mortgage debt was incurred for the purpose of discharging antecedent debts.
12. We shall now refer to the recitals inEx. B-3 on which the learned counsel for the respondents-plaintiffs Sri J. V. Suryanarayana Raorelied for the purpose of showing that the receipt of Rs. 7,000/- was not an antecedent debt.
13. The document is in Telugu and reads that the mortgagor and the mortgagee agreed that the mortgagor should execute a simple mortgage for a sum of Rs. 10,000/- in favour of the mortgagee and that the consideration of Rupees 10,000/- was received by the mortgagor by receiving Rs. 7,000/- in instalments and on account of the receipt of Rupees 3,000/- at the time of the mortgage. We are satisfied that the language in vernacular is not capable of the interpretation which is sought to be contended for by learned counsel for the appellants. The payment of Rs. 7,000/- does not appear to be an independent transaction in point of time as well as fact. It was recited that the said payment of Rupees 7,000/- was made in pursuance of the understanding between the parties that the mortgagee should pay Rs. 10,000/- to the mortgagor for the purpose of his business. It is therefore clear that the amount of Rs. 7,000/- was advanced on the express condition that a mortgage would be executed later and in fact a mortgage was executed under Ex. B-3.
14. A similar question arose for decision in Venkataramasami v. Imperial Bank of India AIR 1938 Mad 889 before a Full Bench of the Madras High Court. In that case the Full Bench was dealing with the question as to what was meant by the word 'antecedent'. The Full Bench referred to the fourth proposition laid down by the Judicial Committee of the Privy Council in Brij Narain v. Mangla Prasad (1925) ILR 46 All 95 : AIR 1924 PC 50 which read as follows :
'Antecedent debt means antecedent in fact as well as in time, that is to say that the debt must be truly antecedent and not part of the transaction impeached.'
15. In Rajayya v. Satyanarayan Murthi, 1934 Mad WN 812 (a Division Bench of the Madras High Court observed that if a man advances a loan to a father in a joint Hindu family and agreed with him to take a mortgage for the loan and subsequently in pursuance of that agreement he takes the mortgage, the mortgage cannot be said to be for a debt antecedent to the original loan. Dealing with the said Division Bench, Leach C. J., observed in the above Full Bench in Venkataramasami v. Imperial Bank (AIR 1938 Mad 889) as follows :-
'This statement of the law is very wide and may give rise to misconception. The mortgage may be independent of the debt despite the fact that the agreement between the parties contemplated the furnishing of security if called for. If the money is lent on the express condition that a mortgage will be executed later and a mortgage follows, the debt cannot be said to be independent of the mortgage, but if the arrangement is merely that the debtor shall give security, if and when required, the position is very different. It may never be required and probably will not be called for, if the creditor remains satisfied with the debtor's personal liability. If it is required because the creditor at a later date has his suspicions of the debtor's stability or for some other reason it cannot be said that the advancing of the money and the subsequent mortgage are part and parcel of the same transaction.'
16. On the facts of the present case we are of the opinion that the receipt of Rs. 7,000/- by the mortgagor was not an amendment transaction dissociated from the mortgage. It is not as if initially the mortgagee lent money on being satisfied about the personal liability undertaken by the mortgagor and that later he felt suspicious and obtained a regular mortgage as an independent transaction. On the other hand we are satisfied that the recitals Ex. B-3 clearly show that the money was lent under an arrangement involving a condition that a mortgage will be executed later and that in fact the mortgage followed as aprt and parcel of the same transaction under which Rs. 10,000/- was agreed to be lent, and that Rs. 7,000/- was initially lent and Rs. 3,000/- at the time of mortgage. We therefore reject the submission of the learned counsel for the appellants that the amount of Rs. 7,000/- was an antecedent debt which could be the basis for fastening liability on the shares of the plaintiffs also.
17. The second contention of the learned counsel for the appellants raises an important question relating to mortgaged debts.
18. The question that arises for consideration is : whether even assuming that the mortgagee's right to btain a personal decree against the 1st defendant is barred, whether still the mortgage decree that may be obtained against the 1st defendant can itself be executed against the plaintiff on the theory of pious obligation. We may however state that the question whether the personal decree is in fact, barred against the plaintiffs is a matter which will be gone into in the mortgagee's suit O. S. No. 100/63 which is now pending.
19. In Faqir Chand v. Harnam Kaur (AIR 1967 SC 727) (supra) the facts were as follows : Murarilal borrowed Rupees 75,000/- on 7-6-1949 from Harnam Kaur and executed a registered mortgage deed on the same date. The property belonged to the joint family. Murarilal the mortgagor had a son by name Faqir Chand. There was a personal covenant in the mortgage deed. Part of the loan was borrowed by Murarilal for discharging an antecedent mortgage debt. The mortgagee filed a suit on 4-7-1952 against the father claiming the usual preliminary decree for sale. On 13-3-1953 against the father claiming the usual preliminary decree for sale. On 13-3-1953 Faqir Chand instituted the suit which went up to the Supreme Court, claiming a declaration against the mortgagee that the mortgage debt was for immoral and illegal purposes and was without legal necessity and was not binding on him.
On 20-4-1953 Harnam Kaur obtained a preliminary decree in her suit. Thereafter Faqir Chand got the plaint in his suit amended by claiming a further declaration that the mortgage decree was not binding on him. Subsequently a final decree was also passed in the mortgage suit. Faqir Chand obtained a stay of the execution of the final decree for sale that was obtained by the mortgagee. The first question that arose before their Lordships of the Supreme Court was whether in the case of a mortgage which was not supported by legal necessity or by antecedent debt the sons of the mortgagor could restrain the execution of the mortgage decree against their shares without showing either that there was no debt had been incurred for an illegal or immoral purpose. Their Lordships referred to the second proposition laid down by the Privy Council in Brij Narain's case (AIR 1924 PC 50) (supra) which reads as follows :
'If he is the father and the other members are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of that debt.'
20. Firstly their Lordships of the Supreme Court laid down that the second proposition in Brij Narain's case (AIR 1924 PC 50) (supra) applies not only to an unsecured debt but also to a mortgage debt which the father was personally liable to pay. It was held that a debt secured by a mortgage was as much a debt of the father as was an unsecured debt and the pious obligation of the sons made the sons liable to discharge mortgage debt. Thereafter their Lordships referred to the decision of the Bombay High Court in Bharmappa v. Hanmantappa, AIR 1943 Bom 451 and the decision of the Nagpur High Court in Ganpati Pandurang v. Rameshwar Motiram, AIR 1947 Nag 69 and it is with regard to the observations made by their Lordships with reference to these judgments of the Bombay and Nagpur High Courts that were mainly concerned on this point. Their Lordships pointed out that Beaumont C. J. in the Bombay case observed that the second proposition in Brij Narain's case (supra), did not apply to the recovery of a debt in its character as a mortgage debt and that a decree for payment of the debt by sale of the property could not be enforced by sale of the sons' interest in it, but if a personal decree was obtained against the father then that decree might be so enforced and that it was pointed out by the Bombay High Court that this view might compel the creditors to recover the debt in two stages. Their Lordships of the Supreme Court also stated that the Nagpur High Court in the above mentioned decision had also taken the same view as the Bombay High Court and their Lordships observed :
'We are not inclined to confine the second proposition within such narrow limits.'
The reason for overruling the Bombay and Nagpur views was mentioned by the Supreme Court as follows :
'As in the case of a money decree, under a mortgage decree also the property is sold for payment of the father's debt. The father could voluntarily sell the property for payment of his debt. If there is no voluntary sale by the father, the creditor can ask the court to do so compulsorily what the father could have done voluntarily. The theory is that as the father may, in order to pay a just debt, legally sell the whole estate without suit, so his creditor may bring about such a sale by the intervention of a suit. See Ramasamayyan v. Virasamy Ayyar, (1898) ILR 21 Mad 222. Even where the mortgage is not for legal necessity or for payment of an antecedent debt, the creditor can, in execution of a mortgage decree for the realisation of a debt which the father is personally liable to repay, sell the estate without obtaining a personal decree against him. After the sale has taken place, the son is bound by the sale, unless he shows that the debt was non-existent or was tainted with immorality or illegality.'
21. These observations of the Supreme Court were relied upon by the learned counsel for the mortgagee Sri P. Ramachandra Reddy to say that even assuming that the period of limitation for obtaining a personal decree against the father had expired still without obtaining a personal decree against him - the mortgagee-decree-holder could execute the mortgage decree against the sons' shares in the joint family property on the theory of pious obligation.
22. We are of the opinion that the observations of their Lordships of the Supreme Court in Faqir Chand's case (AIR 1967 SC 727) (supra) were not meant to apply to cases where the right to obtain a personal decree against the father was barred by limitation. On the other hand the submission of the learned counsel for the plaintiffs Sri J. V. Suryanarayana Rao that their Lordships made the above observations in dissent of the Bombay and Nagpur views to emphasize that it was not necessary for the decree-holder to take out an execution proceedings in two stages as provided in O. 34, R. 6, C. P. C., is, in our view, correct.
23. Order 34, R. 4, C. P. C., provides for the passing of a preliminary decree in a suit for sale. Order 34, R. 5, C. P. C. provides for the passing of a final decree directing the mortgage property or a sufficient part thereof to be sold. Then comes O. 34, R. 6, C. P. C. which before the 1976 Amendment read as follows :
'Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff, the court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.'
24. Form No. 5 which provides for the passing of a preliminary decree for sale under O. 34, R. 4, C. P. C. Clause (7) reads as follows :-
'And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the court may give such directions as it thinks fit.'
25. A reading of O. 34, R. 4, C. P. C. and the Form above mentioned would disclose that the decree-holder is permitted to make an application for passing of a personal decree against the mortgagor in the event of the sale proceeds against the father's share not being sufficient to discharge the debt, subject to the condition that the remedy to obtain such a personal decree was not barred by any law for the time being in force.
26. In our view it is with reference to the provisions of O. 34, R. 4 and the Form above mentioned that the Bombay and Nagpur High Courts had stated that the mortgagee should first bring the share of the father in the joint family property to sale in cases where the mortgage was not supported by legal necessity or antecedent debt, and that in the event of the sale proceeds not being sufficient to discharge the debt, the mortgagee should make a fresh application for the passing of a personal decree against the father and then try to execute that personal decree against the sons on the theory of pious obligation.
27. It is this view of the Bombay and Nagpur High Courts which required the mortgagee-decree-holder to take out execution proceedings twice that was not accepted by their Lordships of the Supreme Court in Faqir Chand's case (AIR 1967 SC 727) (supra). All that their Lordships mentioned in that case was that without obtaining a personal decree as provided in O. 34, R. 4, C. P. C. and the Form, and without the need to take out execution proceedings twice - once against the father and then again against the son - the decree-holder could combine the execution against her father's share in the property on the basis of the mortgage decree and against the son's share in the joint family property on the basis of theory of pious obligation, even though there was no mortgage on the share of the sons. But in our opinion their Lordships of the Supreme Court never intended to say that even in cases where the right to obtain a personal decree against the Father was barred by limitation (as stated in the Form) still the mortgagee could proceed against the sons' share in the joint family property on the basis of the theory of pious obligation.
That the said observations of their Lordships were not intended to have that effect is clear from the fact that in the case before their Lordships of the Supreme Court in Faqir Chand's case (AIR 1967 SC 727) the suit was filed within six years from the date of the mortgage. Similarly in the Bombay case in Bharmappa v. Hanmantappa (AIR 1943 Bom 451) (supra) the mortgage was executed on 7-11-1927 and there was an award decree which contained a personal decree against the mortgagor which has been extracted in the judgment in that case. Likewise in Ganpati pandurang v. Rameshwar Motiram, (AIR 1947 Nag 69) the mortgage deed was executed on 7-11-1921 and their Lordships proceeded on the basis that the preliminary decree reserved liberty to apply for a personal decree against the father if there was any balance and this is clear from para 19 of the judgment.
28. The legal position may therefore be summarised as follows:-
Faqir Chand's case, supra : In cases where the father execute a mortgage in respect of the joint family property and the creditor is able to bind the shares of the sons on account of the absence of legal necessity or antecedent debt, it is open to the creditor who obtained a usual preliminary decree against the father to sell the father's share in execution of the mortgage decree and if still the decree debt is not discharged it is open to the mortgagee to apply for the passing of a personal decree against the father and then execute the same against the shares of the sons in the joint family property under the theory of pious obligation even though the sons' share was not burdened with the mortgage. It is also open to the mortgagee in view of Faqir Chand's case (AIR 1967 SC 727) (supra) to sell the entire estate i.e., the share of the father burdened with the mortgage, simultaneously in the same execution petition without the need to first bring the share of the father to sale separately and then again bring the sons' share for sale by way of a separate execution petition. In the same execution application, the mortgagee could proceed against the father's share in the property on the basis of the mortgage decree and against the sons' share under the theory of pious obligation.
(2) However, where on the date when the mortgagee filed a suit for preliminary decree for sale and is not able to obtain a mortgage decree on the sons on account of the absence of legal necessity or antecedent debt, and where the remedy to obtain a personal decree against the father is also barred on account of Limitation Act or any other law for the time being in force, the mortgagee can proceed only against the father's share in the joint family property in pursuance of the mortgage decree. He can not proceed against the father is barred by the law of limitation or any other law for the time being in force. In such cases where the right to obtain a personal decree against the father is barred in the manner aforementioned, the judgment of their Lordships of the Supreme Court in Faqir Chand's case (AIR 1967 SC 727) (supra) does not enable the mortgagee-decree-holder to bring the sons' shares to sale upon the theory of pious obligation. The said judgment only enables a mortgagee to proceed simultaneously against the father's share under the mortgage decree and against the son's share on the theory of pious obligation in the same execution proceeding, provided there is no objection for the passing of a personal decree against the father, whether, in fact, such a personal decree passed or not.
29. Therefore, in our opinion, the words 'without obtaining a personal decree against him' in Faqir Chand's case (supra) are applicable only to cases where there is no legal objection to the passing of a personal decree against the father even though the personal decree is not, in fact, passed.
30. The next submission of the learned counsel for the appellants is that the 'commercial debts' of a father are binding on the sons on the theory of pious obligation even if the debt related to a new business started by the father. The observations of the Supreme Court in Chattanatha v. Ramachandra, : 2SCR477 to the following effect:
'It is no doubt true that with reference to a trade newly started there is this difference between the position of a father and a manager that while the debts contracted therefor by the former would be binding on the sons on the theory of pious obligation, those incurred by a manager would not be binding on the members unless at least there was necessity for the starting of the trade.'
But, no doubt, support the above contention of the appellants learned counsel, in cases where the time for obtaining a personal decree against the father in respect of a commercial debt is barred by limitation, in our opinion the above principle cannot come into play.
31. But that does not mean that we are deciding in this appeal whether in the pending mortgage suit O. S. No. 100/63 the mortgagee is entitled to a personal decree or not. It is for the court which decides that suit to decide the questions whether the remedy by way of a personal decree is barred by limitation or any other law for the time being in force. In the present suit we have gone only into the question whether the mortgage is binding on the son's share on the ground of legal necessity or the existence of antecedent debt. We have already held that the conditions required for binding the sons shares are wanting, and that the mortgage qua mortgage is not binding on the sons' shares. As the mortgagee has contended on the basis of Faqir Chand's case (AIR 1967 SC 727) (supra) that the mortgage decree against the father's share can be strainghtway executed against the sons' shares not only without obtaining a personal decree against the father but even if the remedy to obtain a personal decree was barred, we had to decide the scope and applicability of the principles laid down in Faqir Chand's case (supra). That being the need to decide the above question of law, the question whether a personal decree can, in fact, be passed in O. S. No. 100/63 must in the very nature of things, be left open for decision in O. S. No. 100/63 filed by the mortgagee and which is stayed under S. 10, C. P. C.
32. The question of limitation for passing a personal decree against the father and the effect of the supervening insolvency of the father declared in I. P. No. 52/55 are all matters to be decided in O. S. No. 100/63.
33. Coming to the three money decrees in O. S. No. 186/54, O. S. No. 265/55 and O. S. No. 42/54 already mentioned, it is fairly conceded by the learned counsel for the decree-holders therein Sri P. Ramachandra Reddi that the decrees were passed on 7-5-1954, 31-10-1955 and 27-7-1955 and no execution petitions were filed against the sons has become barred in view of the judgment of the Madras High Court in Sivalinga Thevar v. Srinivasa Mudaliar, AIR 1949 Mad 346. The finding in this regard is therefore confirmed.
34. It is on record that the official receiver appointed in I. P. No. 52/55 sold the father's 1/3rd share in the hypotheca subject to the mortgage Ex. B-3 and that the same was purchased by the 3rd defendant. The present suit having been filed for petition on 4-11-1955 and the insolvency petition having been filed on 6-11-1955 and the property sold on 9-3-1957 and 28-3-1957, the official receiver had, it is not disputed, no power to sell the sons' share. But as stated by the lower court in para 38 of its judgment, the 3rd defendant (the husband of the mortgagee) came into possession of items 1, 2 covered by Ex. B-3 mortgage.
35. Therefore the appeal in so far as the claims of defendants 3, 7 and 23 are rejected and the decree passed against them is confirmed. However so far as the decree against them is confirmed. However so far as the decree against the 6th defendant is concerned there will be a modification and the clauses (1) and (3) of the decree passed by the lower court shall be recast as follows:
(1) That a preliminary decree is passed for partition of the plaint schedule properties into three equal shares and the plaintiff's be put in separate possession of two such shares free from the claims of defendants 2 to 5, 7 to 23 herein; and the rights of the 6th defendant against the plaintiffs shall be as in clause (3) (a) (b) hereunder.
(3) (a). It is declared that the 6th defendant's mortgage bond dt. 30-4-1951 marked as Ex. B-3 is not binding on the plaintiffs' 2/3rd share in items 1, 2 of the plaint schedule :
(b) The 6th defendant mortgagee shall however not be entitled to proceed against the plaintiffs' 2/3rd share in all the plaint schedule properties for the purpose of realising the amount, if any, due under Ex. B-3 unless the 6th defendant's suit on Ex. B-3 i.e. O. S. No. 100/63, Sub Court, Vijayawada results in the passing of a personal decree against the1st defendant.
Subject to the above modification in favour of the 6th defendant, the appeal is dismissed. Parties to bear their respective costs.
36. Order accordingly.