1. The appellant in this appeal is the decree-holder in O.S. No. 43 of 1935 of the Madura Subordinate Judge's Court. That suit was brought on a promissory note against defendant 1 and his sons, defendants 2 to 4. A decree was passed against defendant 1 alone, the sons having been, as it was called, exonerated. In execution of this decree the appellant-plaintiff attached the properties of both the father and the sons. Between the passing of the decree and the attachment a partition had been effected between defendant 1 and his sons. Against this attachment the sons filed an application (out of which this appeal arises) to have the attachment set aside and the sale stopped as far as their shares were concerned. The contention put forward by the sons was that their shares were not attachable by reason of the intervention of the partition between the decree and the proceedings in execution. This contention was accepted by the District Judge who relied on the decision of Varadachariar J. sitting alone in Thirumalamuthu v. Subramaniam A.I.R. 1937 Mad. 458 and on the decision of King J. in Kangaswami v. Kandaswami A.I.R. 1942 Mad. 732. He also repelled the contention for the plaintiff that the partition was in any case fraudulent, on the ground that this question would have to be agitated in a separate suit and could not be raised in execution. Varadachariar J. in Thirumalamuthu v. Subramaniam A.I.R. 1937 Mad. 458 no doubt held that where a decree on a promissory note executed by a father had been obtained against the father alone, the remedy of the decree-holder against the sons in a case where a partition between the father and the sons had been effected after the decree had been passed and before the execution was taken out, was by a separate suit and not in execution proceedings.
2. For the appellant it is argued that the present case is distinguishable because the sons, although exonerated, were parties to the suit, whereas the sons in Thirumalamuthu v. Subramaniam (1937) 24 A.I.R. 1937 Mad. 458 were not impleaded at all; and my attention has been drawn to the decision of a Bench of this Court in Doraiswami v. Nagaswami : AIR1929Mad898 which, it is said, is direct authority for the view that, where the sons have been made parties to the suit, even though exonerated, their property may be attached in execution of the decree, even though a partition has been effected between them and their father before attachment is sought to be effected. This decision was referred to by Varadachariar J. in Thirumalamuthu v. Subramaniam A.I.R. 1937 Mad. 458 and it seems clear that he would have considered himself bound by it, had it not been for the fact that in. the case before him not only was the decree against the father alone but the sons had not been made parties to the suit. It is contended for the respondents-defendants that the decision in Doraiswami v. Nagaswami : AIR1929Mad898 is no more than that a decree-holder may execute a decree obtained against the father against the shares of the sons also, even though the sons have been exonerated from the suit. The learned Judges who decided the case, it is said, had not in mind the question of whether execution against the sons' shares could be taken out after a partition between them and their father. It is not possible to accept this contention. The questions considered in the appeal were, first, whether the partition had been effected before the promissory note was executed by the father, and in that case of course the promissory note could not be binding on the shares of the sons, and, secondly, whether, if the partition was effected after the execution of the promissory note, the shares of the sons were nonetheless not liable to be sold in execution proceedings against the father. With regard to the first point it was held that the partition was effected after the execution of the promissosy note, and, as already stated, with regard to the second point it was held that the sons' shares were liable to be proceeded against by way of attachment and sale.
3. In fact, the partition which was held by the Court to have been effected by a compromise decree in 1914 was long prior to the attachment and sale of the sons' shares which was on 1st February 1919. On the face of it, therefore, it would appear that the learned Judges who decided the case must have had in mind not only the question of whether the exoneration of the sons from the suit precluded the decree-holder from proceeding against their shares in execution on the pious obligation principle but also whether the fact of the partition, even though execution might otherwise have been taken against them, precluded the attachment of their shares. That in fact the learned Judges did not overlook the fact that the attachment and sale were after the partition and that the partition was an element that had to be considered is made clear by their reference to the observations of Ananthakrishna Ayyar J., in his judgment in the Full Bench case reported in Subramania v. Sabapathi A.I.R. 1928 Mad. 657. The whole question in the Full Bench case was with regard to the rights of the decree-holder as against the sons after a partition; and after quoting the observations of Ananthakrishna Ayyar J., that the creditor could not by obtaining a decree against the father in a suit in which the sons were not parties proceed to execute the decree against properties allotted to the sons under the partition, then went on to state that those observations did not cover the case before them since the sons in the case with which they were concerned were made parties to the suit. In my opinion, therefore, the decision in Doraiswami v. Nagaswami : AIR1929Mad898 covers the present case and, as I am bound by it, the order of the learned District Judge must be set aside and the appeal allowed with costs. The petition will be restored to file 'and determined by the District Judge on the merits. The costs in the lower Court will abide the result.