1. These two connected appeals arise out of the same judgment. The two plaintiffs brought a suit for a declaration that their interest in the plaint schedule property has not passed to the defendant by virtue of his Court auction-purchaser of the property in Execution Case No. 218 of 1941 on the file of the Subordinate Judge's Court, Cuttack. That sale was in execution of a decree obtained by the defendant against the father and the two adult brothers of the two plaintiff's, on the basis of a pronote executed by the father. The case of the plaintiffs is that not being parties to the decree which resulted in the Court auction-sale their interest did not pass to the defendant, decree-holder, auction-purchaser. The suit does not raise any question that the debt on which the decree was obtained was not one binding on the members of the family or that it was a debt of the father vitiated by illegality or immorality. The only question therefore that was raised in this litigation is as to whether the shares of the two plaintiffs in the suit property must be taken, either in fact or in law, to have passed to the defendant Court auction-purchaser. The trial Court held that the decree and the Court auction-sale must be taken to have bound the entire family property including the interests of the two plaintiffs and accordingly dismissed the suit. On appeal, However, the learned Subordinate Judge held that the share of the first plaintiff did not pass, but that so far as the second plaintiff is concerned, his share must be taken to have passed, because he was originally made a party to the prior proceedings and though exonerated, was still in law to be deemed to be a party to that decree for the purposes of Section 47 of the Civil Procedure Code and that therefore a separate suit by him was not maintainable. He accordingly modified the dismissal of the trial Court by confining it to the interest of the second plaintiff and gave a decree in favour of the first plaintiff for his interest. These two second appeals have been brought, one by the second plaintiff, namely, Second Appeal No. 136 of 1947 and the other by the decree-holder, namely, Second Appeal No. 148 of 1947.
2. The main point that arises in these appeals is whether the view taken by the learned Subordinate Judge on appeal is correct, namely, that what must be taken to have passed in execution sale of the decree obtained by the defendant is only the interest of the individual members of the family who were 'eo nomine' on the record as the judgment-debtors in that decree or whether the entire interest of the family in the property must be taken to have passed to him by his purchase.
3. The learned Subordinate Judge has held that only the interest in the family property of the 'eo nomine' judgment-debtors has passed and not that of those who were not in fact parties to the decree. In coming to this conclusion he has relied on the cases in 'PARHLAD DAS V. DASARATHI', AIR 1940 Pat 117 and 'RAJARAM v. RAJA BAKHSH SINGH', AIR 1938 P C 7. It appears to us, how-ever, that he has misunderstood the principle laid down in those cases. The facts of those cases show that the decree obtained against some of the members of the family amounted to an adjudication, express or implied, by the Court that the other members of the family, against whom the suit was dismissed or no decree was passed were not liable for the decree. In those circumstances, it is obvious that a sale in execution of that decree cannot have the effect of conveying the interest of such persons. But so far as I am aware, there is no such principle of law that in the case of a decree obtained against some members of the joint family including the manager in respect of the debt binding on the joint family, the interest of persons who are 'eo nomine' parties, alone, passes. It is well settled that that is a matter to be determined, having regard to the course of the entire proceedings taken for realisation of the debt. The parties actually on record may have been sued in a representative capacity and what was actually brought to sale and purchased may be the interest of the entire family property. Normally in such cases where the debt is one binding on the family, it is more likely than not that the creditor would look to the interest of the entire family in any particular property and not to the interest therein of the individual members thereof, which would only mean further litigation to reduce the same to separate possession. The position has been clearly summarised in Mayne's Hindu Law at page 420, paragraph 4 in the following terms:
'The question whether the execution sale passes only the father's interest in the property sold or the whole property including the Fon's interest depends upon the form of the execution proceedings including the sale proclamation and sale certificate as well as upon the proceedings in the suit in which the decree was made.'
We have not been shown that either the pleadings in the suit or the proceedings relating to execution and the sale certificate, necessarily indicate that the members of the family who are actually parties to the prior litigation were impleaded there only in their individual capacity and that the execution sale should be fairly taken to bring only their interest to sale. It has however been very strongly urged before us that since only 3 out of the 5 numbers of the family were ultimately parties to the execution proceedings and the decree was obtained only against them, the presumption was that they were not impleaded in any representative capacity and that only their interest must; be taken to have passed. We have been shown no authority for drawing any such presumption. The authorities are in fact the other way. It is enough to refer to the Privy Council cases in 'BISSESSUR LALL v. LUCHMESSUR SINGH', 6 Tnd App 233 P C; 'DAULAT RAM v. MEHR CHAND' 15 Cal 70 P C and 'KHIARAJMAL v. DAIM'. 32' Cal 296 P C. There is, therefore, no substance in this argument and it appears to us to be clear that under the Court auction-purchase the defendant must be taken to have purchased the interest of the entire family including the shares of the two plaintiffs in the suit.
4. This conclusion makes it unnecessary to deal with the question raised as to whether the first plaintiff was to be taken to be a party to the prior suit inspite of his exoneration so as to preclude him from raising any such question under Section 47 of the Civil Procedure Code. Learned Counsel for him has also urged that that exoneration amounts to a finding that he is not liable for the decree amount. We have no material before us from which any such inference can be drawn. It was clearly upon him to make out that theexoneration, in any particular case, was by way of express or implied adjudication that he was not liable for the decree debt.
5. In the result, therefore, we cannot agree with the view taken by the learned lower appellate Court in modifying the decree of dismissal passed by the trial Court. Second Appeal No. 136 of 1947 is dismissed and Second Appeal No. 148 of 1947 is allowed and in the result, the plaintiffs' suit is dismissed. The judgment and decree of the trial Court is hereby restored. In these appeals each party will bear its own costs, but in the Courts below the plaintiffs will pay the costs of the defendant.
6. I agree.