G.K. Misra. C.J.
1. Plaintiff is the son of the second defendant. His case isthat by an unregistered agreement of partition text. 1) dated 29-6-1957 he separated from his father, and the joint family properties were divided by metes and bounds and the disputed properties fell to his share. The partition was confirmed subseauently by a registered partition deed (ext. 2) on 1-6-1960. On 9th February 1960, the first defendant filed Money Suit No. 10 of 1960 in the Court of the Munsif. Jeypore, against the second defendant for recovery of certain loan, and obtained an ex parte decree (ext. 4) on 20th August, 1960 On 22nd November, 1961, the first defendant filed E. P. No. 147/61 in the Court of the Munsif, Jeypore, and attached the disputed properties on 6-2-1962. Ext. B is the writ of attachment. The disputed properties consisting of 21.91 acres were purchased by the 1st defendant himself on 26-11-1962 and ext. F is the sale-certificate. On 18th of December. 1962, plaintiff filed an application under Order 21. Rule 58 C. P- C., putting UP a claim to the disputed properties. The same was summarily dismissed on 18-12-1962. The plaintiff has filed the present suit under Order 21. Rule 63 C. P. C. with the prayer that the summary order Passed on 18-12-1962 in Execution Case No. 147/61 should be set aside and a declaration should be given that the second defendant had no saleable interest in the disputed properties. Consequently the attachment and sale were not binding on the plaintiff.
First defendant filed a written statement alleging that there was no partition between the plaintiff and the second defendant in 1957. The disputed properties were attached before judgment on 5-5-1960 prior to the partition effected by ext. 2 on 1-6-1960. He challenged the partition to be collusive. As the attachment was Prior to the partition. 1st defendant's case was that the disputed properties were secured for discharge of the dues under the decree passed against the second defendant.
2. All the Courts have concurrently held that plaintiff failed to establish the partition alleged to have taken place in 1957, and that there was partition between the plaintiff and the second defendant on 1-6-1960 as evidenced by the registered partition-deed (ext. 2).
The learned Munsif, however, held that the disputed properties were attached on 5-5-1960 prior to the partition on ] -6-1960 and that the attached lands were secured for the satisfaction of the debt in the suit. He accordingly dismissed the plaintiff's suit.
The learned subordinate Judge held that the attachment was effected for the first time on 6-2-1962. As the partitionwas prior to the money-decree he was of opinion that plaintiff was not bound by the decree and the 1st defendant was not entitled to proceed against the properties allotted to the plaintiff's share on the strength of the money-decree. He accordingly reversed the judgment of the Munsif and decreed the suit.
In Second Appeal, the learned Single Judge accepted the finding of the lower appellate Court that the attachment was effected for the first time on 6-2-1962. He however, dismissed the suit on the ground that the plaintiff was bound by the decree against his father, the second defendant
This appeal has been filed by the plaintiff against the judgment of the learned Single Judge assailing the legality of his conclusion.
3. The findings of fact recorded by the lower appellate court which were confirmed in second appeal by the learned Single Judge are not assailed before us by the learned Advocates on either side. We must accordingly Proceed on the correctness of the conclusion that the partition between the plaintiff and the second defendant took place on 1-6-1960 subsequent to the filing of the Money suit on 9-2-1960 and Prior to the passing of the decree on 20-8-1960, and that there was no attachment, before judgment.
4. AIR 1952 SC 170 (Pannalal v. Mt. Naraini) is directly applicable to the facts of such a case. Their Lordships laid down in that case the principle regarding the liability of sons under Hindu Law for the pre-partition debts of the father they said that the sons are liable to pay these debts even after partition unless the same was tainted with immorality and illegality. If the debts were not Abvabaharika then the liability of the son to pay the debts even after the partition continues unless there is an arrangement for payment of those debts at the time when the partition took place. So far as this proposition is concerned the law is well-settled and the same view has been consistently taken in AIR 1953 SC 487 (Sidheswar v. Bhubaneswar) and AIR 1959 SC 282 (S. M. Jakati v. S. M. Borkar). This conclusion is in relation to the substantive rights as enjoined by Hindu Law on the theory of pious obligation of sons to discharge the debts of the father.
5. The real question on which there was some controversy is as to how the liability in respect of a pre-partition debt is to be enforced by the cerditor either during the lifetime of the father or after his death. This controversy was resolved in AIR 1952 SC 170 by their Lordships as follows (see para 11):--
'The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the father orafter his death? It has been held in a large number of cases x x x all of which recognise the liability of the son to nay the pre-partition debts of the father -- that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached. The principles underlying these decisions seem to us to be quite sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the separated sons. In the second place, the power exercisable by the father of selling the interests of the sons for the satisfaction of his personal debts comes to an end with partition. As the separated share of the sons cannot be said to belong to the father, nor has he any disposing power over it or its profits which he can exercise for his benefit, the provision of Section 60. Civil Procedure Code would operate as a bar to the attachment and sale of any such property in execution of a decree against the father.'
This decision thus resolves the prevailing conflict of views. On application of its principles the plaintiff's suit is bound to succeed, that is to say, the 1st defendant is to file a separate suit against the plaintiff to enforce the liability arising out of the decree dated 20-8-1960 passed against the second defendant.
6. The learned Single Judge, however, relied upon AIR 1959 SC 282, to come to the conclusion that the decree against the father passed subsequent to the partition is executable against the plaintiff without a separate suit being filed by the 1st defendant. This decision does not lay down any principle contrary to what has been said in AIR 1952 SC 170. It is distinguishable on facts. In that case the suit for partition was filed after the payment order was passed against the father. The bungalow was a coparcenary property on the date of attachment and sale-proclamation. In the partition suit itself the decree was attacked as based on Abyabaharika debt. The finding, however, was that it was not Abvabaharika. As the partition was after execution sale, the son's share also passed under the sale. The entire coparcenary property including the son's share was attached and sold. Those facts are quite different from the facts involved in AIR 1952 SC 170 which in terms apply to the facts of this ease.
7. On the aforesaid analysis, plaintiff's suit is to be decreed. The appeal is allowed, the judgment of the learned Single Judge is set aside and that of the lower appellate court is restored.
In the circumstances, parties to bean their own costs.
S.K. Ray, J.
8. I agree.