1. This is a defendants' appeal in a suit brought by the plaintiff to have a certain order passed under Order XXI, Rule VI set aside. It appears that a male was held in execution of a decree and Hari Ram, the father of the plaintiff respondent, bid a very large sure, over Rs. 3,000, for the property, He deposited a one-fourth share bat did not make good the balance. The sale was set aside and the property was re-sold when it fetched about Rs. 225. It appears that Hari Ram had made a vary bad bargain as there were some very heavy mortgages upon the estate. The judgment-debtor in that case gold whatsoever right he might have had to the present defendant-appellant who applied to the Court and asked for recovery of the deficiency from Hari Ram, Notice was issued to Hari Ram. He Bled objections and then died. Brij Bhukan Saran, the present plaintiff respondent, was made a party in his place and an order was passed under which the amount of deficiency was directed to be recovered from him by sale of his property. He accordingly brought the present suit. beth the Courts below have given him a decree. The first point taken before us is, that no suit would lie to set aside that order. That point is disposed of by the decision of a Full Bench of this Court to be found reported in Tapesri Lal v. Deokinandan Bai 19 A. 22 : A.W.N. (1338) 183 : 9 Ind. 30. (N.S.) 15.
2. The next point taken before us is that, at least a decree ought to have been given for the amount of the deficiency that was recoverable from so much of the estate of Hari Ram as was to be found in the hands of Brij Bhukan Saran. There is no force in this plea. The case has been fought in beth the Courts below on the clear assumption that Hari Ram and his son wore members of a joint Hindu family and that it was the joint family property which Brij Bhukan Saran sought to protest and which the opposite party sought to make liable for the deficiency.
3. Thirdly it is urged that the son is not absolved under the Hindu Law from discharging the father's liability when it is of the same nature as in the present ease. It must be admitted that what was due from Hari Ram was due in the nature of a penalty in that be had made default in paying up the full amount of the purchase money. It is urged that if Hari Ram had completed the purchase the family would have been benefited by it and that, therefore, he having failed to make good the amount at least the family should be held liable for the deficiency. It appears that Hari Ram made a very rash and stupid bid at the sale. He apparently was unaware of the true facts. He very naturally refused to make good the deficiency. No doubt he was liable to a penalty and we think that the case very analogous to that of Durbar Khachar Odha Ala v. Khachar Barsur Oghad (2), to be found reported in I.L.R. 32 Bom. 348. We think the plaintiff respondent was entitled to the decree which has been granted to him by the Courts below. We see no reason to interfere. We, therefore, dismiss the appeal with costs including fees on the higher scale.