1. This is an execution of decree appeal from the order of the learned, Additional District Judge, Cawnpore, disallowing the appellant's objection to attachment of certain property belonging to a joint family consisting of the appellant and his father. The respondents obtained a mortgage from the appellant's father for a certain sum of money charged on the joint family property. Subsequently he instituted a suit for enforcement of that mortgage, in plea ding the father. The son was made a party on his own application and put the mortgagee to proof of legal necessity for the mortgage money. Part of the sum advanced under the deed was found to have been taken for necessary purposes. For such part a decree for sale of the mortgaged property was passed. As regards the remaining part of the consideration of the mortgage, the Court held that the mortgage was invalid. A simple money decree was however passed for that amount against the father personally. The decree-holder applied for execution of such simple money decree by attachment and sale of the property which had been, hypothecated under the mortgage. The son objected on the ground that the mortgage having been declared to be invalid so far as the amount sought to be recovered by attachment was concerned, their family property could not be sold for satisfaction thereof. The trial Court allowed the objection. On appeal by the decree-holder the tower appellate Court took a contrary view and disallowed the objection. The present appeal is from the last mentioned order.
2. The learned advocate for the appellant contends, to set aside the mortgage but to allow the same debt to be recovered by sale of the same property is an anomaly. There is no doubt that the anomaly exists; but it is equally undeniable that it arises from well recognised principles of Hindu law. In the absence of legal necessity or other justifying cause, the father cannot alienate or charge family property, and the sons can have the alienation set aside. The sons are however bound to pay the' debts of the father, unless tainted with immorality, and the holder of a simple money decree against the father can attach the entire joint family property in execution of that decree. The appellant in this case successfully impeached the mortgage so far as it was for the amount now in dispute. The charge created by the father in respect of this amount has already been declared to be invalid. The simple money decree against the father in respect of it is binding on the father and can be executed by attachment of the joint family property belonging to him and the sons. It was argued before me that the Full Bench case of Jagdish Prasad v. Hoshyar Singh 1928 All. 596 is an authority for the proposition that the debt, which was originally secured, is not such a debt of the father as would justify attachment and sale of the father's property. That case is, to my mind, no authority for any such proposition. In that case, a mortgage decree for sale had been obtained against the father in a suit to which sons were no party. No simple money decree had been obtained against the father. Subsequently, in execution proceedings, the question arose whether the sons were bound to pay the debt, assuming there was no legal necessity for the same, incidentally the question arose whether the word 'debt' occurring in the second proposition enunciated by their Lardships of the Privy Council in Brij Narain v. Mengla Prasad 1924 P.C. 50, included secured debt or was limited to unsecured debt. There was some difference of opinion on that question, which was however immaterial for the disposal of the case before the learned Judges composing the Full Bench. There is nothing in that case which can support the proposition, contended for in the present case.
3. It is next contended that the decree-holder cannot proceed against the property hypothecated under the mortgage-deed, and reliance is placed on Order 34, Rule 14, Civil P.C., which provides that:
Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit, notwithstanding anything contained in Order 2. Rule 2.
4. It is clear to me that the debt, for which a simple money decree has been passed, is not in satisfaction of a claim arising under the mortgage, because the mortgage has been declared to be invalid so far as that amount is concerned. The claim arises not from the mortgage, but from the father's liability to pay to his creditor what had been borrowed by him. The section clearly contemplates a case in which it is open to the creditor to obtain the same relief by enforcement of the mortgage and he deliberately refrains from doing so. In such a case, the law makes it imperative that he should seek his remedy by enforcement of the mortgage. The rule obviously can have no application where the mortgage is not enforceable. I hold that Order 34, Rule 14, is no bar to the decree-holder obtaining satisfaction of his decree by at attachment and sale of the property covered by the mortgage deed. If the mortgaged property is sold in execucution of a simple money decree, the auction-purchaser will take it subject to the charge, so far as it has been held to be valid. The two debts are; now separate and distinct.
5. The result is that the appeal fails' and is dismissed under Order 41, Rule 11, Civil P.C.
6. Leave to appeal under the Letters. Patent is asked for but is refused.