1. This is an appeal by Brij Behari Lal, decree-holder. He obtained a decree for Rs. 4269-13-0 on 7th November 1933 against Ganesh Prasad from the Court of the Civil Judge of Basti, and the execution application which has given rise to the present appeal was filed by Brij Behari Lal on 23rd October 1934 in the Court of the First Additional Civil Judge of Gorakhpur. The application sought the attachment and sale of certain house properties at Gorakhpur. It appears that before the present application for execution at Gorakhpur, certain proceedings were taken at Basti in the Court which passed the decree, and it is necessary to state those proceedings. As we mentioned before, the decree was obtained against Ganesh Prasad, but execution was sought against his sons. The first application was made on 19th May 1934 in the Basti Court against Ganesh Prasad under the mistaken belief that Ganesh Prasad was alive. The prayer was for the transfer of the decree to the Gorakhpur Court. Ganesh Prasad had died on 1st May 1934, and when the decree-holder came to know of it, he applied on 10th August 1934 for the return of the file to the Basti Court, and the record was returned to Basti on 13th August 1934. On 4th September 1934 the decrees-holder applied for the substitution of the names of Phunni Lal and Dharam Nath, the sons, in place of Ganesh Prasad, the deceased judgment-debtor. Notice of this application went to Phunni Lal and Dharma Nath and they were asked to show cause by 24th September 1934. On 24th September 1934 they made an application at Basti praying for time on the allegation that they had been served with the application on 18th September 1934 and as there had been some deaths in the family, they could not file objections to the application for substitution by 24th September 1934, and therefore they prayed for the adjournment of the date. On the same date, presumably after the application by Phunni Lal and Dharam Nath, the decree-holder applied for an order of transfer from Basti to Gorakhpur.
2. The learned Civil Judge at Basti thought that there was no necessity to adjourn the hearing of the matter, and ha on 25th September 1934 gave a certificate for the transfer of the decree to Gorakhpur. Phunni Lal and Dharam Nath on 3rd October 1934 filed an objection at Basti challenging the right of the decree-holder to execute the decree against them and alleged that the debt, which was the foundation of the decree, was an improper and illegal debt, inasmuch as it had accrued because of criminal breach of trust committed by the father. It is important to note at this stage that by this time there was no application by the decree, holder for execution of the decree against any property, but the only prayer of the decree-holder was that the names of the sons should be brought on the record in place of the deceased judgment-debtor. In spite of this the Basti Court seems to have fixed a date for the hearing of the objections, and indeed it was the duty of the Basti Court to complete the array of parties and to decide the application for substitution of names. The 27th October 1934 was fixed for the disposal of the substitution matter and Phunni Lal and Dharam Nath failed to appear, and therefore their objections were dismissed on that date. Soon after on the very day an application for restoration was filed on behalf of the sons.
3. In the meantime the decree having been received at Gorakhpur after transfer under Section 39, Civil P.C., an application for execution was filed by the decree-holder at Gorakhpur praying that certain house properties at Gorakhpur be attached. In response to a notice sent on this application objections were filed by the sons of Ganesh Prasad on 5th November 1934, and in these objections it was asserted that the decree could not be executed against the ancestral property inasmuch as the father was guilty of criminal breach of trust and the decree that was obtained against him was in respect to a debt which arose because of the criminal breach of trust. Along with these objections an application was filed in the Gorakhpur Court by the judgment-debtor praying that their objections need not be considered and the matter should be stayed because similar objections were pending at Basti. The Gorakhpur Court stayed proceedings on 10th November 1934. The Court at Basti set aside the order of dismissal for default and restored the objections of the judgment-debtors on 1st December 1934, provided they paid Rs. 10 as damages to the decree-holder. The hearing was adjourned to 19th January 1935. On that date costs were not paid by the judgment, debtors, but they applied that their objections should be dismissed without adjudication. On that date it appears that they were advised to take up the position that adjudication of the objections should be obtained from Gorakhpur. On the application the learned Judge passed the order, 'Premature, hence filed.' A formal order was then prepared, wherein it was stated that as the judgment-debtors had not paid the damages which they had to pay under the order of 1st December 1934 but had applied for the dismissal of their objections, therefore the objections of the judgment-debtors should be deemed to be dismissed with costs.
4. The objections at Gorakhpur, which were ordered to be stayed on 10th November 1934, came up for hearing on 18th February 1935, and the learned First Additional Civil Judge came to the conclusion that the property which was sought to be attached was the joint ancestral property of the objectors, and the decree-holder was not entitled to proceed against this ancestral property inasmuch as Ganesh Prasad against whom the decree was obtained in respect to certain ornaments belonging to the decree-holder was a trustee of the ornaments and was guilty of misappropriation.
5. In appeal before us, it is contended that the objections of the judgment-debtors are barred by res judicata and that the Court below has not taken a correct view of the Hindu law on the subject of the sons liability. On the question of res judicata we might in the very beginning say that the point was not taken before the Court below and was advanced for the first time only before us. Proceedings prior to 4th September 1934 are of no avail so far as the plea of res judicata is concerned, because up till that time the sons were not brought on the record. It was only on 4th September 1934 that the decree-holder applied for substitution and that was the only matter in connexion with which the sons filed objections at Basti. When the decree-holder contends that the order of dismissal passed by the Basti Court on 19th January 1935 operates as res judicata against the judgment-debtors, we have got to consider whether it was at all necessary for the sons to object. It is the rule of constructive res judieata that can be applicable in a matter like this, because Section 11, Civil P.C. does not in terms apply to execution proceedings. No process of execution was sought by the application of the decree-holder dated 4th September 1934 and they were called upon to object to their being brought on the record as the representatives of the deceased judgment-debtor. They were the sons of Ganesh Prasad, the judgment-debtor, and they could not very well at that stage object to their names being brought on the record. It was not clear at that time whether the decree-holder would proceed against the separate property of Ganesh Prasad or against the ancestral property of the family or against the person of the proposed legal representatives. For them therefore to say that the debt on which the decree was obtained was not a proper debt was premature, inasmuch as the decree could in any event be enforced against the separate property of Ganesh Prasad. We have therefore come to the conclusion that the objections of the present respondents on 3rd October 1934 in Basti were misconceived and their dismissal on 19th January 1935, even if this dismissal be considered to be a dismissal on the merits, does not prevent the Court at Gorakhpur from coming to an independent decision untrammelled by the rules of constructive res judicata. We therefore repel the first plea taken by the decree-holder.
6. Coming to the merits of the case, it is necessary to state in some detail the circumstances under which the present decree was passed against Ganesh Prasad and the law relevant on the subject. Brij Behari Lal, the decree-holder lost his parents when he was about 10 in 1920. Some relations of his, including Ganesh Prasad who was the maternal uncle of Brij Behari's father, came to the house of Brij Behari and began to look after his property. Ganesh Prasad being closely connected with Brij Behari was entrusted by all concerned with certain gold and silver ornaments, with 51 sovereigns and with Rs. 1589-13-0 in cash. Boon after Mt. Sukhdei, the maternal grand mother of Brij Behari, was appointed a certificated guardian of the minor's person and property by the District Judge of Gorakhpur on 20th March 1921. She apparently was dissatisfied with the fact that ornaments and cash had been entrusted to Ganesh Prasad and she applied to the District Judge for an order that Ganesh Prasad be directed to hand over the ornaments and cash to her. On 2nd December 1921 Ganesh Prasad filed an application in reply and said that he was ready to hand over the cash and ornaments, but as Mt. Sukhdei, the guardian of the minor, was not possessed of sufficient property, some security should be demanded from her before she was entrusted with the property.
7. The learned District Judge was not impressed with the objections of Ganesh Prasad and directed that the cash and the ornaments should be handed over to the guardian. This order was passed on 7th December 1921. The order apparently was not complied with and the matter rested there. The guardianship case of Brij Behari was transferred from Gorakhpur to Basti, and on 2nd August 1929 Brij Behari applied to the Additional District Judge of Basti that he had attained majority and that Ganesh Prasad should be directed to hand over the ornaments and cash to him. On 17th March 1930 Ganesh Prasad filed objections to the application of Brij Behari asserting that no ornaments had boon entrusted to him by any Court and consequently no order for return should be passed by the Court, and in any event he prayed for time to produce the ornaments and the cash. On 24th March 1930 Ganesh Prasad appeared in person in pursuance of an order of the Court and produced certain ornaments and Rs. 1472 in cash alleging that some cash and some ornaments had already been taken away by Deotadin, a relation of the minor, for the needs of the minor. He made some sort of a halting excuse regarding the return of the 51 sovereigns and said that as there was plague in Basti, he could not unearth the sovereigns which had been buried underground. He prayed for two months' time for the return of the sovereigns. He also said that he had some gold ornaments which also he would be able to produce in another two months.
8. On 27th May 1930 Ganesh Prasad brought some more ornaments and the 51 sovereigns. On 16th June 1930 the Court directed that the cash and the sovereigns which Ganesh Prasad had brought be handed over to Brij Behari, but as there was a dispute regarding the sufficiency and the identity of the ornaments brought before Court by Ganesh Prasad and because Ganesh Prasad was further objecting to the jurisdiction of the Court to pass an order of return, the appropriate action was that the cash and sovereigns alone be refunded and for the rest Brij Behari should be directed to take proper steps in a Court of law. Brij Behari was thus compelled to file a suit which he did on 1st June 1930. He stated the circumstances which we have mentioned above in his plaint, and he prayed for the recovery of the ornaments and in the alternative for their price. It was also said that cash in its entirety was not refunded by Ganesh Prasad and there was a prayer for the recovery of about Rs. 50 on that head as well. It appears that after evidence had been taken and the case was ripe for judgment, Ganesh Prasad on 6th November 1933 applied that he was ready to hand over all the ornaments which had been entrusted to him in 1920. The learned Civil Judge however on 7th November 1933 decreed Brij Behari's suit for Rs. 4225 as the price of the ornaments plus Rs. 44-13-0 cash which had not been accounted for by Ganesh Prasad. The first issue that was struck by the Court was:
Whether the ornaments produced by the defendant for return before the Additional Judge, Basti, were the same as were entrusted to him?...
9. It found that
on the evidence as well as the probabilities it is established that the ornaments which the defendant is willing to produce for the plaintiff are not the same as were entrusted to him.
10. It later went on to say:
It is no use allowing the plaintiff a decree for the return of the specific ornaments entrusted and the same was not claimed before me in arguments because otherwise the same dispute which was before the Additional Judge and also before me will again recur and the object of this litigation will be frustrated.
11. There was thus a definite finding by the Court that the ornaments which Ganesh Prasad had brought before the Court even on 6th November 1933 were not the ornaments which had been entrusted to him some time in 1920. The proceedings that were taken by Brij Behari's guardian in 1921 and the proceedings which were taken by Brij Behari in 1929 and the various objections taken by Ganesh Prasad in response to all these proceedings afford a clear indication of Ganesh Prasad's mentality. He was adopting all kinds of tactics in order to defeat the just claims of the minor, and the Court was compelled on 7th November 1933 to pass a decree for money because of the obstructive attitude taken by Ganesh Prasad. The question therefore arises whether the decree which was passed against Ganesh Prasad was in respect to a debt which was in the words of the Hindu law givers an avyavaharika debt. A number of cases were cited before us at the bar in support of the respective cases of the parties, but it will not be necessary to refer to all of them. A very good discussion of the law on the subject is to be found in Chakouri Mahton v. Ganga Prosad (1912) 39 Cal. 862. Mookerjee J., after quoting the texts of several of the commentators, came to the conclusion that if the provisions of all those texts were summarised, the result appeared to be that the debts which a son was not under any obligation to pay might be grouped as follows : (1). Debts due for spirituous liquor. (2). Debts due for lust. (3). Debts due for gambling. (4). Unpaid fines. (5). Unpaid tolls. (6). Useless gifts or promises without consideration or made under the influence of lust or wrath. (7). Suretyship debts. (8). Commercial debts. (9). Debts that are not vyavaharika, i.e., debts that are not lawful, usual, or customary, or, if the version of Colebrooke be accepted, debts for a cause repugnant to good morals. A Bench of this Court had to consider this question in Second Appeal No. 946 of Raghunandan Sahu v. Badri Teli reported in : AIR1938All263 in connexion with a decree for damages for malicious prosecution, and the question arose whether a debt in order to pay off such a decree was binding on the sons or not, and the Bench came to the conclusion that such a debt was not binding on the sons so as to make a mortgage of ancestral property valid. The question which we have to decide in the present case is whether the conduct of Ganesh Prasad in connexion with the ornaments entrusted to him was such as to make the decree that was obtained by Brij Behari a decree incapable of enforcement against the joint family property.
12. The plea on behalf of the decree-holder is that the decree was obtained in lieu of a civil liability, whereas the plea taken on behalf of the sons is that the decree was obtained in lieu of a criminal liability which liability of course gave rise to a civil liability as well. Ganesh Prasad was never prosecuted for criminal misappropriation or criminal breach of trust, and it is therefore argued on behalf of the decree-holder that Ganesh Prasad's liability was only a civil liability, and reliance is placed on the case in Toshanpal Singh v. District Judge of Agra : AIR1928All582 , where a Bench of this Court held that if there was a civil liability and subsequently the transaction became a criminal one, the son was bound to meet the civil liability to the extent of the family property and the son's obligation to discharge the civil liability was in no way altered by the subsequent crime, and where it was possible to separate the civil liability from the criminal action, the civil liability itself was not so infected. This case was taken in appeal before their Lordships of the Privy Council, and a report of that case is to be found in Toshanpal Singh v. District Judge of Agra . Their Lordships modified the decree of this Court and commenting on the action of the father observed as follows:
Accordingly if, and to the extent to which Thakur Dhianpal Singh withdrew these moneys and applied them for his own purposes, he was guilty, as from the moment of withdrawal, of a criminal breach of trust. But until the moment of withdrawal he had been guilty of no breach of duty, civil or otherwise, in relation to them. It will be found that in this statement is disclosed the key to the solution of this appeal. The failure both of the learned Subordinate Judge and of the High Court to appreciate the situation, as thus stated, has led both Courts in India, as their Lordships very respectfully think, to a wrong conclusion.
13. Their Lordships however did not consider it necessary to decide the contending questions of law that were raised before them supported by a long array of authorities in view of the concession made before them that Dhianpal had been guilty of a criminal breach of trust. We thus have not got an authoritative decision of their Lordships of the Privy Council on this vexed question of law, and we have therefore to decide it for ourselves with such assistance as we can get from the decisions of the various High Courts in India. It would appear that the trend of authority is in favour of the view that a debt, which is repugnant to good morals, is an avyavaharika debt, and in each case it will be the duty of the Court to decide whether the debt in question is repugnant to good morals or not. In the present case we have no hesitation in coming to the conclusion that the conduct of Ganesh Prasad from beginning to end was not the conduct of a decent or responsible person. Time and again he objected to the refund of the ornaments and the cash, and even when Brij Behari filed the present suit, he came with ornaments which the Court found were not such as were entrusted to him. He did not give even the entire cash which had been entrusted to him. He gave the sovereigns after a great deal of delay. Under the circumstances we have no hesitation in coming to the conclusion that this is a debt which the son and the joint ancestral property is not under an obligation to discharge. The view taken by the Court below is correct and we dismiss this appeal with costs.