1. This appeal raises a rather novel question of law. The facts are simple and are these: Khazan Singh obtained a decree for money on foot of a promissory-note executed by one Bhagwana in his favour. Bhagwana is an agriculturist. In execution of his decree his house and enclosure were attached. His brother objected to the attachment of the entire property, and at his instance one-half was exempted from attachment. Bhagwan himself raised the plea that he was an agriculturist, and under the provisions of Section 60, Civil P.C., the property was not liable to attachment and sale. Unfortunately for him and his sons, there was a default in the prosecution of the objection by Bhagwana and the objection was dismissed. The property has been sold and has been purchased by the decree-holder Khazan Singh himself.
2. Soon after the sale, the three sons of Bhagwana and his wife instituted the suit out of which this appeal has arisen. The plaintiffs' case was that the house and the gher (half-share belonging to Bhagwana) was an ancestral property in the father's hand and, being an agriculturist's house and appurtenance thereto could not be attached and sold in execution of the decree. They accordingly asked for a declaration that the sale was null and void and was not binding on the plaintiffs.
3. Khazan Singh defended the suit and he denied the statement made in the plaint that the property was ancestral, but nowhere, further in his written statement, he stated specifically that the property in suit was the self-acquired property of Bhagwana. The plaintiffs had taken exception to the decree on the ground that no debt really existed. On this point the rejoinder of Khazan Singh was that he did lend money and the decree obtained by him was a lawful one.
4. No issue was framed in the Court of first instance as to whether the property was ancestral. The other issues that were framed related to the consideration of the promissory-note, and were, whether the suit was barred by Section 11, Civil P.C., and Section 47 of the same Code, whether the plaintiffs were bound by the acts of Bhagwana, whether the house was exempt from attachment and sale and whether the mother had a right of residence in the house.
5. The Court of first instance decided all the points except the question of consideration in favour of the plaintiffs. It held that there was good consideration for the promissory-note, but it held that the property was not liable to be attached and sold in execution of the decree, being the property of an agriculturist. The mother's claim was dismissed on the ground that she had no interest. Defendant 1 appealed and his appeal succeeded. The learned Subordinate Judge was of opinion that the order dismissing Bhagwana's objection to the attachment of the property was binding on the sons and therefore they were precluded from maintaining the suit.
6. In this Court it has been urged that the plaintiffs are not bound by the order dismissing the objection of Bhagwana and that their suit should have been decreed by the lower appellate Court as well. Before entering into the discussion of the merits of the case we find that there was ample evidence on the record to show that the gher and the house were ancestral properties in the hands of Bhagwana. Two witnesses on behalf of the plaintiffs have sworn to the fact. They were not cross-examined on the point and Khazan Singh himself in his own evidence did not state that the property was not ancestral. We are thus relieved from remitting an issue as to the character of the property. The property in suit being ancestral the sons have an interest in the property by right of their birth. Plaintiff 4, that is to say, the wife of Bhagwana, has no personal interest in the property, although in the case of a partition among the father and the sons she would be entitled to a share.
7. Now the question is whether the present suit is maintainable. The order dismissing Bhagwana's objection to the attachment cannot operate as res judicata against the plaintiffs. There is no decision one way or the other as to whether the property attached was or was not belonging to an agriculturist. That question was never decided. There being no decision the order merely dismissing the objection cannot operate as res judicata on the ground that a decision has been obtained against the father and the father represented the sons in the objection case. Further the property being ancestral the sons have a right to assert their claim to it even as against the father. We do not think that the case comes within the purview of the Pull Bench rulings The Hon'ble Judge evidently refers to Hori Lal v. Munman Kunwar, I.L.R. 34 All. 549 of this Court where it has been held that a father in a joint Hindu family, when he sues or when he is sued, represents his sons in the litigation.
8. The next question is whether in the circumstances of the suit the claim is maintainable. It is clear that the sons, as such, are bound to pay their father's debt. If the property in suit were saleable, on the finding that there is no taint in the debt incurred by the father, the property would have been liable to be taken in execution. An attachment and sale of the property is prohibited by law. Even if an objection has not been taken in the execution department by Bhagwana, if the Court had otherwise become cognizant of the fact that the property attached was the house of an agriculturist, it would have been its duty to withdraw the attachment. This follows from the very language of Section 60, Civil P.C. It runs as follows:
Provided that the following particulars shall not be liable to such attachment or sale.
9. We take it that this is imperative and it prohibits the Court from levying execution over the properties detailed in the section under the proviso.
10. The sons not being parties to the execution proceedings could not appear before the executing Court and raise the objection. Their remedy therefore, if any exists, must be by way of suit. We are of opinion that the plaintiffs have a remedy for the simple reason that they have an interest in the property, and the property is of such a nature that it could not be attached and sold in execution of a decree howsoever binding it might be on the judgment-debtor.
11. In the result the suit should have succeeded in the lower appellate Court as well. We allow the appeal, set aside the decree of the Court below and restore the decree of the Court of first instance. The costs here and in the Court below will be paid by defendant 1 to the plaintiffs.