Patanjali Sastri, J.
1. This is an appeal from an order of the District Court of Anantapur overruling certain objections raised by the appellants to the execution of a decree obtained by the respondents and allowing execution to proceed.
2. The appellants are members of a Hindu undivided family, the third appellant being the father and the appellants 1 and 2 his minor sons. The decree passed against them directed delivery of possession of certain immoveable properties and payment of a certain sum as mesne profits. The immoveable properties have been delivered and the present execution proceedings relate to the recovery of the mesne profits. Under the decree, these were recoverable from the third appellant personally and from the family properties of all the appellants. There have been numerous applications to execute the decree but none of them has so far proved fruitful owing mainly to the laches of the respondents themselves in the conduct of those proceedings. It is unnecessary, however, to set out all those proceedings for the purposes of this appeal and it is sufficient to refer to one of them, E. P. No. 5 of 1930, instituted against the third appellant alone on 27th January, 1930. It is not now disputed that this petition was barred by time but though notice to show cause why the decree should not be executed was duly served on the third appellant, he did not appear and oppose the application, and the Court ordered the issue of a warrant for his arrest on 22nd February, 1930. The respondents, however, failed to pay the requisite fee for the issue of the process and the petition was dismissed on 10th March, 1930. There was another application for execution put in 1933 within three years of the previous one and this also having been dismissed for default, the present petition E. P. No. 86 of 1936 out of which these proceedings have arisen was filed on 7th October, 1936. It may be mentioned here that though the appellants 1 and 2 have also been made parties to this petition, it is not disputed that it is barred so far as they are concerned as they were not made parties to the earlier proceedings and indeed the respondents have given up their claim to execute the decree directly against their shares of the family properties. But in answer to the third appellant's plea of limitation, based upon E. P. No. 5 of 1930 having itself been filed beyond time, the respondents urge that arrest of the third appellant having been ordered on that petition, he is precluded by the principle of res judicata from raising the plea, and the first question for determination is whether this contention is correct.
3. Now, it is well-settled that the principle of res judicata is applicable to execution proceedings, though Section 11 of the Code of Civil Procedure does not in terms apply (see Ram Kirpal v. Rup Kuari (1883) I L.R. 6 All. 269 : L.R. 11 IndAp 37 . But in view of the practice of the Courts, whenever an impediment arises to execution, to dismiss the application allowing the decree-holder to apply again, the question frequently arises as to how far orders passed on previous execution petitions which have been eventually dismissed can be held to preclude parties from raising in subsequent proceedings matters which were not expressly determined by the prior order. After an elaborate consideration of this question, Sulaiman, C.J., laid down in Ganga Lal v. Hasari Lal I.L.R.(1935)All. 313 , certain propositions the last of which is relevant to the present case and has been strongly pressed upon us by learned Counsel for the appellants:
Where no objection is taken, but the application for execution does not fructify, the judgment-debtor is not debarred by the principle of res judicata from raising the question of limitation later.
4. The learned Chief Justice based this conclusion, apart from certain analogies derived from the application of the principle to findings in favour of defendants in suits which are eventually dismissed, upon the provisions of Sub-rules (1) and (2) of Order 21, Rule 23, read with the definition of 'decree' in Section 2, Sub-section (2) of the Code of Civil Procedure. He considered that it was only when the judgment-debtor appeared in response to a notice issued under Order 21, Rule 22, that the Court was bound to 'consider' his objections and make an order thereon which would be an 'adjudication' appealable as a decree, but where the judgment-debtor did not appear at all:
a mere order that the decree should be executed which under the sub-rule has to be automatic cannot be regarded as an adjudication of the question as between the decree-holder on the one hand and the judgment-debtor on the other, so as to operate as a bar by implication at all subsequent stages in the same proceedings.
5. The learned Judge however recognised that where the previous application for execution became 'fructuous' by which apparently is meant partial satisfaction of the decree, the judgment-debtor would be precluded from questioning the validity of that application, though we find it somewhat difficult to see how the fructification of a petition can have a bearing on the question of the binding character of an order passed upon it under Sub-rule (1) of Rule 23. The learned Judge was of opinion that the decision of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri I.L.R.(1881)Cal. 51 : L.R. 8 IndAp 123 , was not opposed to the view he was adumbrating, observing that it 'has, in some cases, been misunderstood.'
6. With all respect, we are unable to concur either in the learned Judge's conclusion or in his view of the effect of the Privy Council decision. Order 21, Rule 22, provides for the issue of a notice to the judgment-debtor to show cause 'why the decree should not be executed against him' and Rule 23 says:
(1) Where the person to whom notice is issued under the last preceding rule does not appear or does not show cause to the satisfaction of the Court why the decree should not be executed, the Court shall order the decree to be executed.
(2) Where such person offers any objection to the execution of the decree, the Court shall consider such objection and make such order as it thinks fit.
7. It will be noticed that Sub-rule (1) covers not only cases where the judgment-debtor does not appear in response to the notice or does not offer any objection to execution, but also those where he appears and objects but fails to satisfy the Court that the decree should not be executed. In all such cases, the Court is required to 'order' the decree to be executed. That is to say, even in cases where the judgment-debtor appears and 'offers any objection to the execution of the decree' and the Court 'considers such objection', it has to act under Sub-rule (1) if it is not satisfied that the objection is valid. Where such objection is found to be tenable, the Court has to make, under Sub-rule (2) 'such order as it thinks fit', that is to say, according to the nature and scope of the objection upheld. There is thus no justification for the view that an order under Sub-rule (1) 'has to be automatic' and that an order under Sub-rule (2) alone amounts to an 'adjudication' such as would fall within the definition of a decree, and we are unable to see any such distinction as the learned Judge supposed to exist between these sub-rules. If, therefore, the Court's 'order' under Sub-rule (1) that the decree should be executed is, as it must be held to be, in cases where the judgment-debtor appears and objects but the objections are overruled, an appealable adjudication binding on the parties so long as it is unreversed, it is difficult to see why a similar order under the same provision in cases where the judgment-debtor does not choose to appear in response to the notice duly served on him, should be regarded as not having that effect. It seems to us that there can be no logical difference for this purpose between an application which results in partial satisfaction of the decree and is then allowed to be dismissed, and one which is eventually dismissed without any 'fructification'. The analogy of a finding in favour of a defendant not operating as res judicata when the suit is dismissed is, we venture to think, somewhat misleading. For, in such a case, a mere adverse finding cannot, be appealed against and got reversed as the decree, in spite of such finding, is in favour of the defendant, whereas an 'order' directing execution to proceed can be appealed from irrespective of the application eventually proving fruitful or iufructuous. Again, even an express adjudication on the objections raised by the judgment-debtor must, on the analogy, be held not to be res judicata if the application on which execution was ordered to proceed is ultimately dismissed but this has never been suggested to be the case.
8. We have examined at some length the reasoning in the full bench case in Genda Lal v. Hasari Lal I.L.R.(1935) A11.313, out of deference to the learned Judges, but we are of opinion that the point is practically concluded by the Privy Council decision in Mungal Pershad Dichit v. Grija Kant Lahiri I.L.R.(1881)Cal. 51 : L.R. 8 IndAp 123 . It is no doubt true, as pointed out by the learned Chief Justice in Genda Lal v. Hasari Lal I.L.R.(1935) All. 313 that in the case before the Privy Council, the judgment-debtor appeared in the previous execution proceeding in which attachment had been ordered and obtained a stay of the sale, acknowledging the validity of the order for attachment and consenting to its continuance, and that their Lordships rested their conclusion also upon such conduct of the judgment-debtor. But this was not the only ground of their decision. It seems to us that the decision is also based on the conclusiveness of the order for attachment made on the petition of the 8th October, 1874. They observe at page 59:
Admitting, for the sake of argument, but only for the sake of argument that the decree was barred when the sixth application was made when the notice was served on the 23rd of September, 1874 and when the petition of the 8th of October, 1874 was presented, and that the Subordinate Judge ought to have dismissed the petition upon the ground of limitation, although it was not set up or relied upon by the judgment-debtor, still his order, though erroneous, was valid, not having been reversed * * * The Subordinate Judge had jurisdiction upon the petition of the 8th October, 1874 to determine whether the decree was barred on the 8th October, 1874, and he made an order that an attachment should issue. He, whether right or wrong, must be considered to have determined that it was not barred. A Judge in a suit upon a cause of action is bound to dismiss the suit, or to decree for the defendant, if it appears that the cause of action is barred by limitation. But if, instead of dismissing the suit, he decrees for the plaintiff, his decree is valid, unless reversed upon appeal; and the defendant cannot, upon an application to execute the decree, set up as an answer that the cause of action was barred by limitation.
9. These passages clearly indicate that the decision proceeded on the principle of res judicata as well, and it has been so understood by almost all the High Courts in India : see Sheoraj Singh v. Kameshar Nath I.L.R.(1902) All. 282, Mora Joshi v. Ramchandra Dinker Joshi I.L.R.(1890)Bom. 24, Coventry v. Tulshi Pershad Narayan Singh I.L.R.(1904)Cal. 822, Lakshman Chetti v. Kuttayan Chetti I.L.R.(1901)Mad. 669, Lakshmanan Chetty v. Palaniappa Chetti : AIR1928Mad1052 , Jago Mahton v. Khirodhar Ram I.L.R.(1923)Pat. 759. We are unable to agree that the decision in Mungal Prasad Dichit v. Grija Kant Lahiri I.L.R.(1881)Cal. 51 : L.R. 8 IndAp 123 has been 'misunderstood' in all these cases. See also Raja of Ramnad v. Velusami Tevar (1920) 40 M.L.J. 197 : 48 I.A. 45 where their Lordships applied the same principle where in a previous order for execution the plea of limitation that was raised was not specifically dealt with. We are therefore of opinion that an order for execution made after notice to the judgment-debtor who does not appear and offer any objection precludes him from raising a plea of limitation in subsequent proceedings even though the application on which the order was passed does not fructify and is eventually struck off or dismissed. We may observe that a Bench of two Judges in Lakshmanan Chettiar v. Kuttayan Chetti I.L.R.(1901)Mad. 669 has taken the same view on facts more or less similar to those of the present case, and so far from being convinced by the strenuous argument of the appellants' learned Counsel that the decision requires reconsideration, we are inclined to agree with it.
10. A further contention has been put forward on behalf of the sons, the appellants 1 and 2. Assuming that the plea of limitation is not open to their father (the third appellant) and the decree could be executed against his interest in the family properties, their shares in such properties, it is urged, should be exonerated as it is not disputed that the decree is time-barred so far as they are concerned. The learned Judge in the Court below, while recognising that the decree against the sons could not be executed as such, took the view that the decree being executable against the father, the sons' shares were liable to be proceeded against in such execution by reason of their pious obligation under the Hindu Law to discharge the father's decree debt, and the learned Counsel for the respondents has attempted to support this conclusion before us.
11. This somewhat archaic rule of pious obligation is no doubt firmly established in Hindu Law although the religious notions on which it is founded have ceased to command general acceptance at the present day, as could be seen from this case where the sons as well as the father, unmindful of the evil consequences which the rule is intended to avert, resist the claim of the creditor, while the latter would apparently rescue them from their doom by enforcing the pious duty. But decisions regarding the scope and incidents of this obligation are by no means uniform. It is, however, generally recognised that the liability of a son does not extend to the payment of the time-barred debts of the father (see Subramania Aiyar v. Gopala Aiyar (1909) 20 M.L.J. 633 : I.L.R. 33 Mad. 308 and Mayne's Hindu Law, 10th Edition page 421). It is therefore argued for the appellants l and 2 that they are not liable as the decree is really barred even against their father, though the latter is personally estopped by the principle of res judicata from showing this; while the respondent broadly maintains that so long as the decree is capable of execution against the father, the pious obligation of the sons to discharge the decree debt out of the family properties remains and can be enforced. We are relieved from the necessity of deciding this interesting question of Hindu Law which is not altogether free from difficulty, as, whatever might be the position if the decree had been obtained against the father alone, we are of opinion that, the respondents having impleaded the sons also in the suit and obtained the decree against their shares in the family estate, cannot claim to proceed against such shares in execution of the decree against the father, when it can no longer be executed directly against them owing to the bar of limitation. It is true that the liability of a son arising out of his pious obligation is distinct from that of his father though arising out of the latter's debt, and can be enforced against him by executing a decree obtained against the father alone against the entire family estate including the son's interest therein, provided of course that the debt is neither illegal nor immoral. But when the son is joined in the suit and a decree is obtained bin ling his interest also, the claim against him based upon his obligation must necessarily be deemed to have been put in suit and merged in the decree, and the only mode of enforcing such claim is, as it seems to us, by executing the decree against him. The matter is no longer governed by the Hindu Law but by the relevant provisions of the Code of Civil Procedure. In Raja Ram v. Raja Baksh Singh (1938) 1 M.L.J. 41 : 13 Luck. 61 the Privy Council had to consider a case where a suit brought by a creditor against the undivided sons and grandsons of a deceased Hindu debtor was dismissed against the grandsons, and their Lordships held that the decree could not be executed against their interests in the family property. Their Lordship's observed at page 63;
If the debt in question was not contracted for purposes regarded as immoral by the Hindu Law, and if the respondents being grandsons of Badri Singh were liable therefor to the extent of their interest in the joint family property, then the Subordinate Judge's decree of 13th May, 1931, was erroneous. The appellant should have appealed therefrom, claiming that, instead of dismissing the suit as against the respondents, the Subordinate Judge should have given a decree against them in like manner as against defendants 1 to 3, namely, as representatives of Badri Singh for a sum to be realised out of any property of Badri Singh come to their hands.
12. Similarly, we apprehend, where the creditor's suit is decreed also against the son, the decree must rule. It follows that if such decree is allowed to become barred against the son, the creditor will no longer have any remedy, so far as the son's interest in the family property is concerned.
13. This Court has no doubt held in Periasanii Mudaliar v. Seetharama Chettiar I.L.R.(1903)Mad. 243 : 14 M.L.J. 84 that a decree obtained against a father creates by its own force a debt against him which his sons are under a pious obligation to discharge and a suit can be brought against the sons to recover the decree debt within six years of the decree against the father. But the decision clearly envisaged cases where a decree was obtained against the father alone, and, the father being dead and the decree not, being executable against the family properties according to the view taken by this Court under the old Code, the creditor was held entitled to file a suit against the sons on the decree debt within six years from the date of the decree although a suit on the original debt might be barred. Where, however, the sons were impleaded in the suit against the father and there has been an adjudication as to their liability, it has never been held that another suit would lie against the sons on their pious obligation to pay the decree debt of the father. Obviously, it cannot lie where a decree against the sons has been refused. The same, we conceive, must be the case where a decree has been passed against them. If such a decree is allowed to become time-barred as against the sons, the creditor cannot, it seems to us, in executing the decree against the father attach and bring to sale the entire interest of the family as the father in such proceedings can no longer represent the sons who are judgment-debtors in their own names. The position would of course be different if the creditor had sued the father alone. It that case, as we have already observed, he could bring the family properties to sale including the interests of the sons who would be represented by their father and who could only sue either for a declaration that : their shares are not liable to be sold, or for recovery of such shares after they are sold, by showing that the debt was illegal or immoral, or, according to some decisions., did not in fact exist (see Lakshmudu v. Ramudu I.L.R. (1940) Mad. 123.
14. Learned Counsel for the respondents has strongly relied upon a recent decision of this Court in Krishna Naidu v. Sami Naidu : AIR1940Mad544 where in a suit on a promissory note executed by a father his sons were also impleaded on the ground that the debt was incurred for family necessity, but in the appeal, the plaintiffs decided not to ask for a decree against the sons who were dismissed from the suit, and obtained a decree against the father alone. In the execution proceedings that followed, the sons objected that having been dismissed from the suit, they could not be held liable for their father's debt. The learned Judges (the Chief Justice and Krishnaswami Ayyangar, J.) held that the dismissal of the suit against the sons did not prevent the decree-holder executing the decree against the sons interests in the family property. It is argued for the respondents that, if a creditor can proceed against the soils' interests in the family estate in execution of a decree obtained against the father even when his suit has been dismissed against the sons, he cannot be in a worse position where the suit has been decreed against the sons and the decree against them has become time-barred. If the principle of res judicata does not apply in the one case, it cannot, it is said, apply in the other. This argument seem to us to proceed upon a misconception of what was decided in the case referred to above. We do not understand the case as deciding that if in a suit against a father and his sons, the sons are. found not to be liable in respect of the debt sued upon and the suit is dismissed as against them, the creditor can, in executing the decree against the father, proceed nevertheless against the interests of the sons, as such a conclusion would be plainly contrary to the principle of res judicata. On the other hand, the statement in the judgment that 'in the District Court the appellants decided not to ask for a decree against the sons who were dismissed from the suit' would rather seem to indicate that the learned Judges were dealing with a case where the plaintiffs chose to withdraw the case against the sons, and proceeded with it only against the father. That the learned Judges placed reliance upon the decision in Periasami v. Vaidhyalinga Pillai (1937) 47 L.W. 60, further supports this view. That was clearly a case where the creditor withdrew the suit against the sons and Varadachariar, J., who delivered the judgment of the Court pointed out the distinction between a withdrawal of a suit against the sons and its 'dismissal against them on the merits. The other case relied upon in the judgment of the learned Chief Justice namely Doraiswami v. Nagasami : AIR1929Mad898 , was also, presumably, one where the suit was withdrawn against the sons. The facts are not stated in the report and the judgment in that case merely refers to the 'exoneration' of the sons. We are therefore of opinion that the observation in Krishna Naidu v. Sami Naidu : AIR1940Mad544 , namely;
a decree was passed against the father after the sons had been dismissed from the suit, and the passing of the decree gave to the decree-holders a new right, which they could enforce against the sons,
must be understood with reference to the facts of the case and as applicable only to cases where the creditor's suit against the sons is dismissed as withdrawn without any adjudication, either express or implied, on his claim against them.
15. In the result, the appeal is allowed so far as appellants 1 and 2 and their shares in the family properties are concerned, and the order of the Court below directing execution to proceed is modified by restricting it to the share of the third appellant in the family properties. The appellants 1 and 2 will have their costs here and in the Court below and the respondents will have the costs of this appeal from the third appellant.