1. The petitioner was the endorsee of a promissory note executed by one Rajagopala Ayyar, the father of the respondents, in favour of one Gnanambal. He obtained a decree in S.C. No. 515 of 1939 against the respondents, the undivided sons of the said Rajagopala Ayyar. Originally the decree directed them to pay the decree amount 'out of the separate assets of their father.' The petitioner applied to this Court to revise the decree (C.R.P. No. 1474 of 1940) and Burn, J., modified the decree by substituting for the words ' out of their father the late Rajagapala Ayyar's separate assets 'the words' as the legal representatives of their late father Rajagopala Ayyar.' In execution of this decree, the petitioner proceeded to attach the pint family properties in the hinds of the respondents. The respondents objected to the attachment on the ground that the petitioner was a decree-holder in a suit on an endorsed promissory note and the suit being only on the promissory note he could not have any decree that can bind the joint family properties. The only point for consideration therefore was whether the joint family properties could be proceeded against in execution of the decree. The learned District Mansiff of Mayavaram overruled the objection of the judgment-debtors and allowed execution to proceed against the joint family properties. There was an appeal by the judgment-debtors to the Subordinate Judge of Mayavaram who reversed the decision of the learned District Munsiff and dismissed the execution petition on the ground that the joint family properties were not liable to be proceeded against. He was of the opinion that Section 53 of the Code of Civil Procedure did not apply to the decree in question. He followed the decision of Horwill, J., reported in Natarajan Chettiar v. Perumal Ammal : AIR1943Mad246 and though he referred to the decision of Chandrasekhara Aiyar, J., in Pothuraju v. Appala Naidu (1944) 2 M.L.J. 82, he. thought that this decision would not be of any help to the petitioner.
2. The question for decision in my opinion really lies within a very short compass. We are not now concerned with the question as to the proper decree which should have been passed in the circumstances of the case. There was a final decree and it was not open to the executing Court to go behind it. The suit was brought on a promissory note against the legal representatives of the maker and a decree was passed against them as the legal representatives of their father. No doubt ordinarily a decree passed against the legal representatives of the original debtor can only be executed against the property of the deceased debtor in the hands of the legal representatives. According to the well-accepted notions of Hindu law when a father dies, it cannot be said with reference to the joint family property that he leaves behind him any property which goes into the hands of his sons. The result would be that a decree against a father would be incapable of being executed again t the joint family property after the father's death. But by virtue of the special provision contained in Section 53 of the Code of Civil Procedure the property in the hands of a son or other descendant which is liable under Hindu law for the payment of a debt of a deceased ancestor in respect of which a decree has been passed is deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
3. The question in short in this case is whether the joint family property in the hands of the respondents is liable under Hindu law for the payment of a debt of their deceased ancestor, viz., their father. It is not the respondents' case that the debt is immoral or illegal. It follows therefore that the joint family properties in the hands of the respondents would be liable to be proceeded against in respect of a decree passed for the payment of the debt of their father.
4. The argument of Mr. K.S. Narayana Ayyargar is this As the suit was not on the debt of which the promissory note was eviderce, but on the promissory note itself by an endorsee, Section 53 of the Code of Civil Procedure is not attracted as it cannot to said that there is any debt of a decreared ancestor for which the joint family property in the hands of the sons is liable. He relies for his contention on the Full Bench ruling in Maruthamuthu Naicker v. Kadir Badshe, Rowther : AIR1938Mad377 . That ruling has nothing to do with the point arising for decision in this case. The fact that in as it by an endorsee of a promissory note who is not also the transferee of the debt evidenced by the promissory note, no one can be liable except the executant does not mean that there is no debt due by the executant. All that has been said in the decisions on this aspect of the case really deals with the frame of the action and relates to certain consequences which follow from provisions of the Negotiable Instruments Act including the question of the burden of proof. There is nothing in any of the decisions to support the contention of Mr. Narayana Ayyangar that when an ordinary end rsee, that is an endorsee not being a transferee of the debt, sues on the promissory note he is not suing to recover the debt. What he is.seeking really to recover is on the basis of a debt which must be treated in law as the debt of only the maker on the instrument. It may be that the amount advanced under the promissory note was utilised for the purpose of the family, but if the plaintiff seeks to make the members of the family liable for the money, advanced to them through their manager, whether he be the father or not, then, he must allege and establish that the debt was so advanced. This obviously cannot. be done by a person who is in the position of merely an endorsee without being a transferee of the debt. He cannot allege and establish that he is entitled to obtain relief against the members of the family other than the executant. All these considerations do not negative the existence of a debt due by the maker himself. In fact it is on this debt that the decree is passed. That is why as the learned Advocate for the respondents himself conceded even if a decree be passed in favour of a mere endorsee of a promissory note against the father as the maker, still such a decree can be executed against and satisfied from out of the entire joint family property of the father and the sons. In this case as the father was dead, the sons were sued as the legal representatives of the maker. The decree was passed on the debt due by the maker. In this case he happens to be the father of the defendants. These facts clearly bring the case within the scope of Section 53 of the Code.
5. I may also mention that the narrower view fallen by Horwill, J., in Natarajan Chettiar v. Perumal Ammal : AIR1943Mad246 has been overruled by the ruling of the Bench in Venkata-swanti v. Tata Reddi : AIR1947Mad162 but these are cases which deal with the proper decree to be passed and not as to what properties can to proceeded against in execution of a decree against the legal representatives of a deceased debtor when the debtor happens to be the father. The lower Court was clearly wrong in dismissing the execution petition.
6. It was further contended by Mr. Narayana Ayyangar that assuming the learned Judge made a mistake in law, that would not be a ground for interference under Section 115 of the Code of Civil Procedure and cited to me well-known decisions like Amir Hassan Khan v. Sheo Baksh Singh (1884) L.R. 11 IndAp 937 : I.L.R. 11 Cal. 6 (P.C.), Kristamma Naidu v. Chapa Naidu I.L.R. (1894) Mad. 410 and Balakrishna Udayar v. Vasudeva Ayyar (1917) 33 M.L.J. 69 : L.R. 44 IndAp 261 : I.L.R. 40 Mad. 793 . But the view I take of the case is this: Burn, J., deleted from the decree originally passed the words 'cut of the separate assets of their father' and passed a decree against the respondents ' as the legal representatives of their late father Rajagopala Ayyar. The view taken by the lower appellate Court on a mistaken notion of the law is really inconsistent with the decree as passed by Burn, J. The effect of the lower appellate Court's order is practically to confine the decree to the separate assets of Rajagopala Ayyar in the hands of the respondents. The executing Court acts without jurisdiction, if, by a wrong understanding of the law, it goes behind the decree. Though the decree is passed against the respondents as legal representatives and such a decree can be executed against the joint family property in their hands as the sons of their father, the learned Subordinate Judge has held that the decree-holder cannot proceed in execution against the joint family properties. In my opinion this is clearly a ground of interference contemplated by Section 115 of the Code of Civil Procedure. In the result the civil revision petition is allowed with costs. The petitioner will also be entitled to his costs in the lower appellate Court.