1. The appellant obtained a decree against the father of the respondents in O.S. No. 169 of 1941 on 20th October, 1941. Subsequently the respondents and their father divided and this appeal arises out of an application by the appellant under Sections 50 and 53 of the Code of Civil Procedure to have the sons made parties to the execution application and to proceed in execution against their shares. The petition was allowed by the District Munsiff; but the District Judge of Kurnool allowed the appeal to him and dismissed the application.
2. The question is whether in the circumstances of the case, the decree-holder was entitled to proceed against the coparcenary property in the hands of the respondents in execution or whether his remedy was not to proceed against this property by way of a separate suit. In my opinion, the decision of the District Judge is correct. It has no doubt been held that where the sons had been impleaded though exonerated the decree-holder could proceed against the interest of the sons after partition; but there is no authority for the view that this procedure can be adopted where the sons were not parties at all to a suit brought by an endorsee of a promissory note executed by the father. In Venkatanarayana Rao v. Somaraju : (1937)2MLJ251 , the decree was against the father in his capacity as manager of the family. The appeal fails and is dismissed. As the respondent is not represented, no order is made as to costs.