Subba Rao, J.
1. This is an appeal against the order of the Subordinate Judge, Bapatla, directing the sale of the properties that fell to the share of the appellants in a partition. The material facts may be briefly stated:
2. One Budaraju Venkata Subbayya and his sons instituted O.S. No. 106 of 1924 on the file of the Subordinate Judge's Court, Bapatla, against the first defendant and his sons for partition and possession of their half share in the family properties and also for an account and recovery of the amounts pertaining to their share. The first defendant to that suit is Budaraju Hanumantha Rao, the second defendant is his son, Ramakoteswara Rao and the other defendants are the other sons of Hanumantha Rao. The suit was decreed as prayed for. Under the decree a sum of Rs. 4,635-7-9 was directed to be paid by the first and second defendants to the plaintiffs. The plaintiffs also obtained a charge on the shares of the first and the second defendants. The appellants are the sons of the second defendant, Ramakoteswara Rao. They were born subsequent to the filing of the aforesaid suit. Pending the suit, the seventh and the eighth defendants filed a suit against their father, grandfather and his sons, O.S. No. 34 of 1931, Sub-Court, Tenali, for partition and for possession of their two-third share out of their father's one-fourth share of the family properties and obtained a decree on 5th September, 1935. In execution of the decree in O.S. No. 106 of 1924, the plaintiffs filed an application for sale of the immoveable properties that were allotted to the shares of the appellants and their grandfather Hanumantha Rao. The appellants contested that application mainly on the ground that the decree obtained in O.S. No. 106 of 1924 against their father and grandfather could not be executed against them as they were not parties to that suit and as they obtained a decree in O.S. No. 34 of 1931 for partition prior to the passing of the decree in O.S. No. 106 of 1924. The learned Subordinate Judge rejected their contention and directed the properties to be sold. The appellants have preferred the above appeal against that order. The 7th respondent in the appeal, that is, the grandfather of the appellants, has filed a memorandum of cross-objections mainly raising the plea of discharge of the decree and also that he was not given notice of re-hearing of the execution application.
3. The learned Counsel for the appellants contended that the decree against the father could not be executed against the properties that were allotted to the share of the sons as the sons obtained a decree for partition prior to the decree sought to be executed. Decided cases lay down two propositions apparently conflicting but really reconcilable:
(i) In execution of a decree obtained against the father after partition of the joint family properties between the father and the son, the decree cannot be executed against the properties that fell to the share of the son even though the said decree was obtained on the basis of a pre-partition debt.
(ii) If the father or the manager represented the family in the litigation and the members of the family were substantially parties to the suit through the manager though not eo nomine parties on the record, the decree so obtained can be executed against those who were either actually or constructively parties to the suit.
4. The first proposition is illustrated by a decision reported in Kuppan Chettiar v. Masa Goundan : AIR1937Mad424 In that case the creditor obtained a money decree against the father and in execution of that decree proceeded to attach certain properties in the hands of the sons. They claimed that the said properties fell to their share under a partition effected between them and their father and that they were not liable to be proceeded against in execution of the decree obtained against the father alone. The learned Judges held that as a Hindu father has no power of disposing of property allotted at a genuine partition to the share of the sons, such property is not liable to be proceeded against in execution of a money decree obtained subsequently against the father alone. At page 1006 Varadachari, J., observes:
In order that properties may be liable to attachment in execution, it must be shown that they either belong to the judgment-debtor or that the judgment-debtor has a disposing power over the properties or their profits which power he may exercise for his own benefit...
It would therefore follow that after a division in status the father's creditor cannot, any more than the official Assignee, claim that the property is saleable by the father and therefore attachable by himself.
The learned Judge also pointed out the well-understood distinction between the creditor's remedy in execution and the creditor's remedy by a separate suit. This decision was considered and accepted as laying down the correct law in the decision in Official Receiver, Guntur v. Seshayya : AIR1941Mad262 and other cases. The second proposition is laid down in the Full Bench decision in Venkatanarayana v. Somaraju : (1937)2MLJ251 In that case, the father purchased certain properties on behalf of the joint family which were subject to a mortgage. The mortgagee brought a suit to enforce the mortgage and obtained a decree against the father alone. In execution of the decree, he purchased the property and filed a suit against the father and his sons for recovery of possession of the property so purchased and for mesne profits. The sons raised the plea that they had nothing to do with that property as in a partition that was effected between them and their father, the said property fell to the share of their father. Indeed on that ground, they were exonerated from the suit. At the time of the alleged partition, the suit property was allotted to the share of the father and another son, who was a minor at the time of the decree. A decree for mesne profits was ultimately passed against the father alone. As the father died, the decree was sought to be executed against the property in the hands of the minor son. He resisted execution on the ground that during the pendency of the previous proceedings, there was a partition between him and his father and the properties sought to be proceeded against were allotted to his share and therefore were not liable to be proceeded against in execution. The learned Judges also held that the father represented his son throughout the litigation although he was not described as a party on the record. At page 890, Mr. Justice Venkatasubba Rao, after considering the decision of the Judicial Committee in Daulat Ram v. Mehr Chand observed,
that the managing member could effectively represent the entire family and that a decree passed against him would be binding upon all the members, and secondly, that it is not necessary that it should be stated in the pleadings in express terms that he is suing or is being sued as such manager; the suit will be deemed to have been brought by or against him in his representative character if the circumstances of the case show that he is the manager of the family.
Dealing with the question whether subsequent partition would make any difference, the learned Judge states at page 894 that it does not and gives the following reasons for his opinion:
The reason for holding that the members not joined should be held liable is, that they are substantially parties to the suit through the manager, in other words, they are sufficiently represented, though not eo nomine parties on the record. It follows from this that the decree can be executed not only against the parties whose names appear but also against those who must be deemed to be constructive parties. In this view, it is immaterial whether the family continues to remain joint or become divided.
Mr. Justice Venkataramana Rao who agreed with Mr. Justice Venkatasubba Rao, states his view in a different manner but to the same effect. At page 903, the learned Judge observed:
Therefore, where a father or other manager is sued as a representative of a family, the other members of the family must be held to be substantially parties to the suit through such manager. The fact that they are not parties eo nomine will not render them any the less parties to the suit.
At page 904, the learned Judge continues:
When they must be held to be parties to the Suit, it is immaterial what the character of the property in their hands is, whether it is still undivided property or has become separate property by division.
The learned Judge also lays down the presumption that
where the suit relates to a joint family property and the person sued is either the father or the eldest member, the accredited head of the family, it must be presumed that he was sued as representing his family, and he need not be described as such in the pleadings, nor need the decree be specifically passed against him as such.
We are bound by the Full Bench decision. But the learned Counsel for the appellants brought to our notice that subsequent to the decision, another Bench of this Court in Ramanalhan Chetti v. Shanmugham Chettiar (1944) 1 M.L.J. 384. threw some doubts on the principles laid down by the Full Bench. It is not necessary to state the facts of that case as the decision in that case did not turn upon the view expressed by the learned Judges about the correctness of the Full Bench decision. The observations are really in the nature of 0biter and it is enough if we read the relevant passage. The learned Judges, after extracting the relevant passages from the judgment of the Full Bench, observed as follows:
The reasoning, however, would seem to overlook the fact that the applicability of the principle of res judicata which is made applicable to such cases by Explanation 6 of Section 11, Civil Procedure Code, rests not on the theory that the persons represented by the party litigating in respect of the common right are parties to the suit, but on the ground that such persons 'shall for the purpose of this section, be deemed to claim under the persons so litigating' which necessarily implies that these persons are themselves not parties to the suit.
However, the learned Judge proceeded to dispose of the case on another point. With great respect, we cannot agree with these observations as they ignore the fundamental principle on which the Full Bench decision was based. It is no doubt true that the decisions relied upon by the learned Judges in the Full Bench case arose in connection with the plea of res judicata based upon Explanation 6 to Section 11, Civil Procedure Code, but the principle laid down therein is of general application. The principle was not based upon Explanation 6 to Section 11. But the principle laid down by the Full Bench is one that is behind the explanation. If' the father represented the son in the suit, the son must be deemed to be a party to the suit and the decree. It therefore follows that the decree can be executed against the property that fell to the son's share. To hold that a judgment against the father in his representative capacity is binding on the son on the principle of res judicata but that the decree so obtained cannot be executed against the son would lead to startling results in that the decree-holder would be compelled to file another unnecessary suit against the son to which the son would have no real defence as he would be precluded from contesting the suit on the ground of res judicata. For the aforesaid reasons, we are not only bound by the Full Bench decision but we also agree with the principles succinctly stated therein. In the present case, the facts are really governed by the Full Bench decision in Venkatanarayana v. Somaraju : (1937)2MLJ251 From the aforesaid narration of facts, it would be clear that in O.S. No. 106 of 1924, Ramakoteswara Rao, the father, obviously represented his branch of the family. The suit was by one collateral branch of the family against Ramakoteswara Rao and his three sons for partition of the joint family property. To that suit, all the sons of Hanumantha Rao were made parties, and necessarily Hanumantha Rao represented the entire branch and each of his sons represented their sub-branch. It is impossible to conceive of cases where a father does not represent the members of his family in a partition suit especially when there were no disputes inter se between, them. Ex hypothesi it would be so where the sons were not even born at the time-when the suit was filed against their father for partition of the joint family properties by another branch of the family. In the circumstances of this case, it must be presumed that the father represented the family, and the fact that he was not described as such in the pleadings and that the decree was not specifically passed against the family as such would not make any difference in the legal position. There is nothing on the record to rebut such a presumption. We therefore hold that Ramakoteswara Rao represented the appellants in O.S. No. 106 of 1924 and that although they were not eo nomine parties to the decree, the decree-holders are entitled to proceed against the properties that were allotted to their share in the partition that was effected between them and their father.
5. The grandfather, Hanumantha Rao, who is the seventh respondent, has preferred a memorandum of cross-objections. His main contention was that the decree could not be executed as the decree-holder was a party to the composition scheme in the insolveny of the appellant pursuant to which he was discharged. A perusal of the judgment of the lower court shows that this point was not raised or argued before the learned Subordinate Judge; nor are there materials before us which will justify our interference on that ground. It is stated that the Advocate for the 7th respondent argued this point in the lower court on the 4th September,. 1943, when orders were reserved and the application posted for orders on 8th September, 1943, and that without his or the advocate's knowledge, the case was re-opened and was adjourned from time to time when finally it was disposed of on 12th April, 1944. 'To substantiate this contention, the learned Counsel for the 7th respondent attempted to rely upon an affidavit alleged to have been filed by him in this court. A search of the record disclosed that no such affidavit was filed and indeed no copy of the alleged affidavit was served upon the respondents or their learned Counsel. We are also not satisfied that the 7th respondent would not have had knowledge of the subsequent posting of the application for re-hearing as the application underwent innumerable adjournments and took about 7 months for disposal after the 4th September, 1943. We are not satisfied that this is a fit case for giving the 7th respondent another opportunity to raise his contentions, which he neglected to raise in the lower court.
6. In the result, the appeal is dismissed with costs of respondents 1 to 6 and the memorandum of cross-objections is dismissed with costs.