Sarjoo Prosad, C.J.
1. This appeal is directed against the order dated May 26, 1959, passed by the Senior Civil Judge, Ajmer, dismissing the objections of the, judgment-debtors-appellants under Section 47 of the Code of Civil Procedure in the execution case.
2. The relevant facts, though not elaborately set out in the order under appeal, are not disputed by the parties and they may be briefly indicated as follows: The decree-holder-respondent instituted a suit for recovery of certain ornaments which were said to have been in the custody of Bengali Lal, and in the alternative, for recovery of the value thereof amounting to about Rs. 26,000/-. The suit was filed in December, 1945. A written statement on behalf of Bengali Lal was presented sometime in March, 1947, denying his liability. It is said that Bengali Lal was mentally infirm at the time and therefore the written statement was presented by a guardian on his behalf. Bengali Lal died during the pendency of the suit and in December, 1948, his sons, who were then minors, and, who are the present appellants before us, were impleaded as heirs and legal representatives of the deceased.
Later, in the course of the proceedings in May and August, 1953, two properties belonging to the joint family of Bengali Lal and his sons, the appellants, were ordered to be attached before judgment. In July, 1955, Sita Ram, one of the appellants here, who had by that time attained majority, filed an objection to the attachment before judgment. This objection was not finally decided, but the suit itself was eventually decreed on April 30, 1957, for a sum of Rs. 13,875/- with proportionate costs. The decree was passed against the appellants as legal representatives of the deceased Bengali Lal and no decree for the return of the ornaments could be made as the whereabouts, of the ornaments were not known. Execution proceedings followed almost immediately thereafter on May 16, 1957. As the proceedings were initiated within a year of the date o'f the decree no notice under Order XXI, Rule 22, Civil Procedure Code was served, but a notice under Order XXI, Rule 66 for settlement of the terms of the sale proclamation was issued to the appellants. In response to that notice the judgment-debtors filed their objections on May 1, 1958, and raised various pleas against the execution of the decree. The decree-holder presented his reply to the objection of the judgment-debtors on May 15, 1958, and the executing court framed a number of so called issues for the purpose of deciding the objections raised.
It appears that, with a view to enable the judgment-debtors to adduce evidence in support oftheir objections, time was given to them on various occasions. In his order under appeal the learned Civil Judge pointed out that since August 16, 1958, the matter had been pending to enable the judgment-debtors to produce their evidence and on November 8, 1958, the judgment-debtors were warned that they should obtain copies of the necessary documents and present them in court; yet they did not comply with the order without any reasonable explanation, nor did they pay even the costs which they were directed to pay as a condition to their obtaining adjournments. Therefore, there, was nothing on which the objections could be determined and he accordingly rejected the objections by his order under appeal and directed that steps should be taken for the sale of the properties attached. It is against this order that Mr. Johari has come up in appeal on behalf of the judgment-debtors. He submits that even though there was no evidence produced by the judgment-debtors, yet some of the objections raised by them were legal objections which had to be decided by the executing court before directing the sale of the attached properties. In particular, reference has been made to paragraphs 5 and 6 of the objection petition.
The objection contained in those paragraphs is that the immovable properties against which attachment before judgment was issued were ancestral properties of the judgment-debtors and as such were owned and possessed by them as sole surviving members of the Hindu coparcenary of the deceased Bengali Lal in their own rights and. not as legal representatives of the deceased. It was further submitted that the decree under execution was in respect of debts incurred by Bengali Lal, which could not be binding upon the judgment-debtors or their interest in the properties under Hindu Law, as they were immoral or avyavaharik debts of the father.
3. The decree-holder's learned counsel resists ed these submissions. He contended that even it the properties were ancestral properties of the judgment-debtors, they being the sons of Bengali Lal are bound by the decree and the properties already attached can be sold in execution of the decree against Bengali Lal, the father, manager or karta of the joint family; that the liability of Bengali Lal under the decree was binding on the sons on account of their pious obligation to pay the same and the decree, therefore, could be executed against the interest of the sons in the properties in question.
4. It is to be remembered that the decree in this case was passed against the sons themselves who had been impleaded in the suit as heirs and legal representatives of their deceased father Bengali Lal and the attachment before judgment continued to subsist even upto the stage of the execution. The learned counsel for the appellants contends that the question whether after the death of the father the decree could be executed against the joint family property in the hands of the sons was still a matter to be decided by the executing court and it was the duty of the executing court to see whether or not the decree constituted avalid liability so as to be enforced against the sons' interest on the doctrine of pious obligation. It is well established that a decree for money passed against a Hindu father governed by the mitakshara school of Hindu law can be executed against the interests of the sous in the joint family property; But if the sons raise a plea that the debt of the father in respect of which the decree has been passed was incurred for illegal or immoral purposes, or it was an avyavaharik debt, then it is open to the sons to have the matter investigated in the execution proceedings. The position has been well explained in the decision of the Supreme Court in Panna Lal v. Mt. Naraini, AIR 1932 SC 170. In that case it was observed:
'It can now be taken to be fairly well settled that the pious liability of the son to pay thedebts of his father exists whether the father is alive or dead, vide Brij Narain v. Mangla Prasad, 51 Ind App 129 (PC). Thus it is open to the father, during his lifetime, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for 'family necessity or benefit, provided it is not tainted with immorality. It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father's but also the son's interest in the joint estate. The creditor can make the sons parties to such suit and obtain an adjudication from, the Court that the debt was a proper debt payable by the sons. But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. These propositions can be said to be well recognised and reasonably beyond the region of controversy, vide Girdharee Lall v. Kantoo Lall, 1 Ind App 321 (PC); Muddun Mohun Thakoor v. Kantoo Lall, 1 Ind App 333 F. N.; Suraj Bunsi v. Sheo Prasad, 6 Ind App 88 (PC); Brij Narain v. Mangla Prasad, 51 IndApp 129: (AIR 1924 PC 50)'.
It was further held,--
'The position, however, would be materiallydifferent if the sons are made parties to the suits as legal representatives of their father and a decree is passed against them limited to the assetsof the deceased defendant in their hands. A proceeding for execution of such a decree would attract the operation of Section 47, Civil P. C., under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or theirrepresentatives would have to be decided in execution proceedings and not by a separate suit'.
There can be no doubt, therefore, that the objection whether the decree constituted a pious obligation binding on the interest of the sons could be investigated in the execution case, but the burden of showing that the debt in respect of which the decree was passed was an illegal or immoral debt was upon the judgment-debtors and since no evidence has been adduced by them in support of their contention, the executing court had no option but to reject their objections. This it did after having given sufficient indulgence to them to enable them to produce their evidence.
5. The learned counsel, however, submits that even on the pleadings of the case the debt in question was an avyavaharik or immoral debt and therefore could not bind the interest of the sons. He develops his argument in this form that the refusal to return the ornaments which are said to have been in the custody of the father Bengali Lal amounted to a criminal breach of trust on, his part and consequently there was no liability on the sons to pay for the value of those ornaments so as to discharge the debt created by the father. He relies in this context upon a decision of the Privy Council in Toshanpal Singh v. District Judge Agra, 61 Ind App 350 : (AIR 1934 PC 238). I that case the Hindu Secretary of a school committee was in charge of a fund deposited in a bank, and was authorised to draw upon it only for specific purposes connected with the school. After his death the committee sued his sons to recover from them out of the property left by their father, or out of the property of the joint Hindu family an alleged deficiency in the fund amounting to Rs. 42,993/-on account of the drawings by the father for purposes other than those authorized. The Privy Council held in the circumstances of that case that the drawings for unauthorized purposes were criminal breaches of trust within Section 405 of the Indian Penal Code, and that under Hindu law the sons to that extent were not liable. They were, however, held liable for the balance of the deficiency, as the sons had failed to show that they were not under a pious obligation in respect of that amount.
It clearly appears from the facts of the case that in the absence of any authorisation by the committee the obligation of the appellants' father in relation to the fund was not to draw upon it, save for the specific purposes authorized; and until the moment of the improper withdrawals he had been guilty of no breach of duty, civil or otherwise. The Privy Council, therefore, considered it unnecessary to decide whether the sons were liable in Hindu Law to pay a sum which had originally been a civil obligation of the father, but which he had subsequently misappropriated. Nor did it consider it necessary to decide whether the illegal and immoral debts in respect of which a son is not liable are only such debts as are of a strictly criminal nature. There the money was in the custody of the Bank and therefore until the stage of the unauthorised withdrawals for misfeasance of the amount there was no criminal intent. Criminal intention to misappropriate commenced from the very stage of the withdrawals. The case in question, therefore, does not help the contention of the learned counsel in this appeal.
6. The learned counsel, however, submits that even assuming that originally the ornaments were lawfully entrusted to Bengali Lal, the father, but when he refused to return those ornaments it amounted to a criminal breach if trust and therefore the sons were under no obligation to pay a liability of this nature. On the findings in the suit in which the decree was passed there can be no doubt that the ornaments were in the Custody of Bengali Lal, and it was therefore a civil obligation on his part to return the ornaments or to pay the value thereof. Such a liability could notfee said to be an avyavaharik or an immoral debt and the decree obtained tor the purpose of enforcing such a claim could be executed against the interest of the sons on the doctrine of pious obligation. But the point is: does the position change because subsequently the ornaments are not returned? There is absolutely nothing on the record here to show that there was any criminal intent on the part of Bengali Lal in not returning the ornaments. The failure to return may have been due to various reasons; but even it be granted for the sake of argument that subsequently the intention became dishonest and he wanted to misappropriate the ornaments, even then, in our opinion, the civil liability which had already accrued on account of the ornament being in the possession of Bengali Lal continued to subsist, and any decree passed against him for the purpose of enforcing the liability could be executed against the interest of the sons and the objection on the ground of avyavaharik or immoral debt could not be entertained.
The point is well illustrated in the decision of Anandarao v. Co-operative Credit Society, Pedatadepalli, AIR 1940 Mad 828 where their Lordships considered the import of the Privy Council judgment, cited earlier. In dealing with that case Leach C. J. observed that Lord Blanes-burgh in delivering the opinion of tile Board expressly pointed out that until the moment of the withdrawal from the fund the father had been guilty of no breach of duty, civil or otherwise, and observed:
'In view of the powers and duties prescribed for Dhianpal (the father) in relation to Rs. 62,000 there was as their Lordships have already shown, in relation to the moneys misappropriated by him, no antecedent duty in respect of which any similar liability was either created or survived'.
The Privy Council decision, according to the learned Chief Justice, in effect accorded approval to the decision of the court in Me Dowell and Co., v. Ragava Chetty ILR 27 Mad 71 and left 'entirely unaffected the line of cases which say that the sons are liable where there was lawful receipt of money and subsequent misappropriation'. The other learned Judge who was associated with the learned Chief Justice took a similar view of the matter and opined as follows :
'It will be found on an examination of the case that their Lordships considered that the case fell within the class of cases where the original taking or withdrawal itself amounted to an offence. Referring to the conduct of the father in that case in withdrawing the money from the Bank and misappropriating it, their Lordships observed: With reference to these balances (at the Bank) he was under no further obligation unless and until their application was otherwise directed by the Committee. No such direction was ever given. Accordingly if, and to the extent to which Thakur Dianpal Singh (the father) withdrew those 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 withdrawl he had beenguilty of no breach of duty, civil or otherwise, in relation to them'.
A distinction therefore has to be made where the criminal and civil liabilities start from, the very beginning and where initially there is only a civil liability but a criminal intention develops at a later stage. In the present instance there is nothing on the record to show that at any stage the intention of the father Bengali Lal was to criminally misappropriate the ornaments in question. In the circumstances, even as a pure question of law the submission of the learned counsel cannot be accepted.
7. In our opinion the objection filed by the judgment-debtors were rightly rejected by the executing court in view of their failure to adduce evidence in support of their objections. The appeal, therefore, fails and must be dismissed. The parties would bear their own costs.