Subrahmania Ayyar and Benson, JJ.
1. If the house sought to be sold is property charged by the decree with maintenance, the property can be sold in execution of the decree even though the respondent was not made a party to the decree, since there can be no contention that the debt, was either illegal or immoral, and the decree is not merely a personal decree against the father alone as in Muttia v. Virammal I.L.R. 10 Mad. 283 but a decree against the representatives of the family directly creating a charge. The concluding part of the judgment in Muttia v. Virammal I.L.R. 10 Mad. 283 is an authority for holding that such a decree can be executed against the sons of the defendants, though not actually made parties.
2. If, however, the property was not charged by the decree, the son, under the same authority, may be entitled to object to property taken by him by right of survivorship being proceeded against in execution.
3. The District Judge has not definitely found whether the property attached was property comprised in the decree. We must therefore ask for finding on this point. Evidence may be taken on both sides.
4. In compliance with the above order, the District Judge submitted the following
5. Finding.--The decree charges (besides other property) 'the tiled house in the village of Thiruchithambalam which is the ancestral property of the defendants' family.' A tiled house in Thiruchithambalam was attached by the decree-holder (appellant) in execution of her decree; and two witnesses have been called by her who say that this house was in existence when the decree was passed, and that the defendants' family had then, and have now only this one house in Thiruchithambalam. There is no evidence the other way, and the respondent's pleader says that he has not received any instructions from his client. I find on this evidence that the house which the appellant attached and which the District. Munsif released from attachment, is property comprised in the decree.
6. The appeal came on for final hearing, after the return of the above finding, before the Court constituted as above, when their Lordships delivered the following.
7. No objection is taken to the finding. We accept it and reverse the orders of the Courts below and direct the execution petition to be disposed of according to law. The appellant will have her costs throughout.