Satyanarayana Rao J.
I think the question raised in this case should be decided by a Bench. If it becomes necessary it may have to go even before a Full Bench.
A son under the Hindu law is undoubtedly liable for the pre-partition debts of the father which are not immoral or illegal. If a decree, however, is obtained against the father alone, and there is a partition of the family properties, in execution of such a decree, the son's share cannot be seized by the creditor as by reason of the partition the disposing power of the father possessed by him over the son's share under the pious obligation of the son to discharge the father's debts can no longer be exercised. With the partition, the power comes to an end. The liability thereafter can be enforced only in a suit. After partition, the son's share can no longer be treated as property over which the father had a disposing power within the meaning of Section 60, Civil P. C. So much seems to have been settled by the decisions.
But in a case in which there is a decree against the father personally in a suit in which the sons were originally impleaded but were exonerated later and there is a partition of the family properties, it has been held in -- 'Doraiswami v. Naga-swami' : AIR1929Mad898 , that in execution of such a decree, the son's share could be seized and sold. This decision was followed by a single Judge of this court in -- Thangachami Chetti v. Kanakasabapathi' : AIR1944Mad393 . Recently the Supreme Court considered these questions in -- 'Pannalal v. Mst. Naraini' : 1SCR544 . If the basis of the execution against the sons' share was the existence of the power of the father to dispose of the sons' share to discharge his debts not tainted with illegality or immorality and if that power came to an end with the partition of the properties, it is difficult to see any distinction in principle whether the sons were impleaded as parties to the suit and were exonerated or were not made parties to the suit at all.
The distinction, therefore, drawn in the two cases referred to above which have taken a contrary view, based upon the circumstances that the sons were impleaded as parties, though later exonerated, seems to be not warranted by the authorities.
2. In my opinion, therefore, the decisions in : AIR1929Mad898 and : AIR1944Mad393 , require consideration by a Bench. The matter will, therefore, be referred to a Bench.
(Pursuant to the aforesaid Order, this appeal coming on before the Chief Justice and Venkata-rama Aiyar J., the Court made the following order of reference to a Full Bench:) (23-11-1953).
3. We agree with Satyanarayana Rao J. that the decisions in : AIR1944Mad393 , require consideration. As the former of the two decisions is the decision of a Division Bench, we refer this appeal to a Full Bench.
Judgment of the Full Bench
Subba Rao, J.
4. This appeal has been placed before the Full Bench as Satyanarayana Rao J. sitting alone, and Rajamannar C. J. and Venkatarama Aiyar J. constituting a Division Bench thought that the decisions in : AIR1929Mad898 and : AIR1944Mad393 , require reconsideration.
The facts may be briefly stated. China Ramayya, the third defendant, his son Nageswara Rao the first defendant and the first defendant's son . Anjaneyalu, the second defendant, constituted members of a joint Hindu family. The first defendant executed a promissory note dated 5-6-1946 in favour of the plaintiff, Venkamraju. On 6-11-1946 Venkamraju instituted O. S. No. 270 of 1946 on the file of the court of the District Munsif, Tenali, for recovering the amount due on the said promissory note. To that suit he impleaded the first defendant's minor son Anjaneyalu as second defendant and the first defendant's father China Ramayya as third defendant. Liability was sought to be fastened on to the second defendant on the ground that he was liable to discharge his father's debt from and out of his share in the family properties. The third defendant was made a party on the ground that he was a universal donee from the first defendant.
The District Munsif exonerated the third defendant with his costs but passed a decree for the suit amount against the first defendant personally and against the interests of the second defendant in joint family properties. The first defendant preferred an appeal against that decree. In the appeal the learned Subordinate Judge of Tenali held that as the suit was based only upon the promissory note no decree could be passed even against the second defendant and on that finding he exonerated the second defendant also with costs. In the result, a decree was given only for the promissory note amount against the first defendant.
Pending the suit, the decree holder attached six items of property which were admittedly joint family properties. But on 2-10-1946, the first defendant executed Ex. A. 3 relinquishing his interest in the joint family estate in favour of his father and minor son. When the decree holder filed E. P. No. 270 of 1948 for bringing the said items to sale, the second and third defendants filed E. A. No. 29 of 1949 for raising the attachment on the ground that as they were exonerated from liability under the decree and as the first defendant against whom the decree had been passed had relinquished his share in the family properties in their favour prior to the Institution of the suit, the decree holder was not entitled to bring the properties to sale.
The, learned District Munsif raised the attachment on the third defendant's half share in the attached properties; but the application was dismissed in so far as the interests of the second defendant were concerned. He held that though the second defendant had been exonerated in the suit, his share in the family properties was nevertheless liable for the debt of the father and could be proceeded against in execution. The second defendant preferred an appeal to the court of the Subordinate Judge of Tenali, it being A. S. No. 99 of 1949. Pending the appeal he died and his grandfather China Ramayya the third defendant was brought on record as his legal representative by an order dated 12-12-1949.
The learned Subordinate Judge, relying upon the aforesaid two decisions, held that though there was a partition on 2-10-1946, in the family whereby the first defendant got separated from the joint family, the decree holder was entitled to proceed against the properties in the hands of the son In that view the appeal was dismissed. The third defendant preferred the above appeal.
5. These decisions on the basis of which the courts below have proceeded appear to be contrary to the principles established by other decisions of this court and also inconsistent with the decision of the Supreme Court in ' : 1SCR544 (C)', where their Lordships lay down in terms that a decree obtained against a father alone even for a pre-partition debt cannot be executed against the share of a separated son but that the creditor has to proceed only by way of independent suit against such divided sons, if he was desirous of enforcing the pious obligation of the son to discharge the pre-partition personal debts of the father. In such a suit, the creditor could obtain a decree unless the son was able to prove that the debt of the father was Avyavaharika and therefore not enforceable against him.
6. Learned counsel for the respondent however sought to support the decision of the courts below on the following four points:
1. The relinquishment deed executed by the. first defendant did not in law effectuate a partition in the family.
2. The decree against a father on the basis of a pre-partition debt can be executed against the sons' share in the joint family estate, notwithstanding the supervening partition in the family.
3. Even if the aforesaid proposition is too wide and not sustainable in law, the sons' share can be proceeded against in execution of a decree on the basis of a pre-partition debt for the sons were made parties to the suit but later on were exonerated.
4. The question of the executability of the decree against the father against the properties allotted to the sons' share in the partition is one that relates to the execution of the decree between the parties to the suit, and therefore, by reason of Section 47, 'C. P. C., the said question can only be decided in execution. (7) The first question turns upon the true construction of the release deed, Exhibit A.3 dated 2-10-1946. That release deed was executed by the first defendant in favour of the second defendant and third defendant. After narrating that the parties upto that date constituted members of a joint Hindu family, the document proceeded to state that the executant was spending a life of debauchery and extravagance, that he was anxious to prevent further waste and ultimate loss of the property to the family and that he was therefore relinquishing the entire interest in the Joint familyfor the benefit of the other members of the family. He only stipulated that the other parties to the document should maintain him properly by giving him food and clothing.
The operative portion of the document reads: '(I) have for the benefit of you the members of our joint family and the male issue that may be born to me hereafter, relinquished the entire right, title and interest possessed by me in the moveable and immoveable properties as well as the assets and liabilities of our joint family, and executed and delivered this release deed in your favour creating in your favour all absolute right, title, possession and interest. I have hereby relinquished the rights, title and interest possessed by me in the entire moveable and immoveable properties as well as the assets and liabilities of our family. The male issue that may be born to us hereafter shall, according to Hindu law, enjoy the same with all absolute rights of giit, transfer, exchange and sale, bearing a!l the liabilities in respect thereof'.
Under this document, the first defendant in cleat and unambiguous terms relinquished his entire share in the joint family property in favour of the other members of the family.
But it is contended by the learned counsel, relying upon the decision of the Supreme Court in -- 'Chinnathayi v. Kulasekara' : 1SCR241 , that the document does not evince a clear intention on the part of the executant to renounce or surrender his interest in the joint family estate, and therefore it cannot have the legal effect of separating the first defendant from the other members of the family.
In that case one of the questions raised was whether the impartible estate had ceased to be Joint family property for purpose of succession. Their Lordships held that it was incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined, so that it became the separate property of the last holder's branch, and the question whether there was a separation among the members of the family owning an impartible zamindari was primarily a question of fact. They accepted the finding given by the High Court that it had not been established in that particular case. The question therefore is whether by executing Ex. A. 3, the first defendant clearly evinced his intention to separate himself from the members of the family.
On a fair construction of the plain words used in the document, only one conclusion is possible and that is that the executant for the reasons mentioned by him relinquished his interest in the joint family property. If he did not separate himself from the other members of the family, the purpose of the document itself would be defeated, for he relinquished his interest so that he might not incur further debts and involve the family in greater difficulties. It is said that there was another member of the joint family and the fact that he did not execute the document in his favour also indicates that his intention was not to separate himself from the family. But that circumstance was not placed before the courts below and I do not think I am Justified in allowing him to state a fact which is neither admitted by the other side nor supported by the records before me. I therefore hold that under the release deed, the first defendant became separated from the family.
8. The second question raised by the learned Counsel does not yield scope for serious argument in view of the consistent opinion expressed by aseries of decisions in this court and also by the Supreme Court.
It is settled law that a son is liable even after partition for the pre-partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition, See : 1SCR544 . But the question was raised in this court whether a decree against a father can be executed against properties allotted to the sons in a partition effected between them. That question was answered in the negative by Varadachariar J., in 'Thirumaiamuthu v. Subramania', AIR 1937 Mad 458 (E). The learned Judge there held that where after the passing of a. money decree against the father alone in a suit on a promissory note executed by him, a partition was effected between the father and his minor sons, the decree-holder was precluded from executing his decree against the properties allotted to the shares of the sons in that partition. 'At page 459' the learned Judge says:
'So far as the decisions in this court go, there can be little doubt that but for the fraudulent purpose of the partition the decree-holder cannot reach the sons' shares in execution of the decree obtained against the father alone.'
When the inconveniences flowing from such a view from the stand-point of the creditor were pressed upon the learned Judge, he observed at page 460:
'Dealing with the matter on principles, it is difficult to see how the mere fact that members of a family who are in law entitled to enter into a partition at any time they choose happen to enter into a partition at a time more inconvenient to a creditor can make it fraudulent in the sense that the creditor can ignore it. The law provides ways, in which the creditor can avoid any injurious consequences arising therefrom, namely, by impleading the sons in the action that he may bring against the father, because it is now well established by the preponderance of authority in nearly all the courts that a partition will not defeat the rights of the creditor, though it may have some bearing on the procedure to be followed by him for the realisation of his debt.'
The reasons for the creditor's disability to proceed against the son after the partition was stated in -- 'Krishnaswami Konan v. Ramasami Aiyar', 22 Mad 519 (F) as follows:
'The principle upon which the son cannot object to ancestral property being seized in execution for an unsecured personal debt of the father is that the father, under the Hindu law, is entitled to sell on account of such debt the whole of the ancestral estate. This necessarily implies that at the time the property is seized, it remains the undivided estate of the father and the son. If the estate were divided the father could not sell what does not fall to him in the division. Ergo, property taken by tha son, in partition, cannot be seized on account of such unsecured personal debt of the father, even though the debt had been Incurred before the partition.'
This principle was restated again in -- 'Kame-swaramma v. Venkatasubba Rao', AIR 1914 Mad 328 (G).
A Divisional Bench of this court, consisting of Vardachariar and Burn JJ. in -- 'Kuppan Chettiar v. Masa Goundan', AIR 1937 Mad 424 (H) expressed much to the same effect, when they said at page 425:
'In order that properties may be liable to attach- ment in execution, it must be shown that theyeither belong to the judgment-debtor or that the judgment-debtor has a disposing power over the properties or their profits which power he may exercise for his own benefit.'
The learned Judges relied upon the observations or their Lordships of the judicial Committee in --'Sat Narain v. Sri Kishan Das' to the effect that the father's power of sale for' his debts exists only so long as the joint family remains undivided. The principle laid down in! these decisions has been accepted and followed in the later decisions of this court: See -- 'Official Receiver, Guntur v. Seshayya', AIR 1941 Mad 262 (J); -- 'Ramanathan Chettiar v. Ramanathan Chettiar' : (1949)2MLJ751 and -- 'Surya-narayana v. Ganesulu' : AIR1954Mad203 .
A seal of finality was given to this controversy by the Supreme Court in : 1SCR544 Mukherjea J. summarises the law in the following manner: 'Thus, in our opinion, a son is liable even after the partition for the pre-partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the father or after his death? It has been held in a large number of cases all of which recognise the liability of the son to pay the pre-partition debts of the father, that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition. They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached. The principles underlying these decisions seems to us to be quite sound. After a partition takes place, the father can no longer represent the family and a decree obtained against him alone cannot be binding on the separated sons. In the second place, the power exercisable by the father of selling the interests of the sons for satisfaction of h!s personal debts comes to an end with partition. As the separated share of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit, the provisions of Section 60, C. P. C. would operate as a bar to the attachment and sale of any such property in execution of a decree against the father' We respectfully agree with these observations and indeed we are bound by them.
The learned counsel for the appellant seeks support for his position on the decisions of the other High Courts. In view of the consensus of judicial opinion in our court on the question and in view of the clear and authoritative statement of law made by the Supreme Court, I do not think any purpose would be served by pursuing this matter further., I hold that after partition the decree obtained; against- the first defendant on the promissory note could not be executed against the properties allott-ed to the second defendant in the partition effected in the family.
9. Now, adverting to point No. 3, I do not see any Justification either on principle or on facts for differentiating the two classes of cases, namely, where the son was made a party to the suit but subsequently exonerated and where he was not made a party at all. If the principle underlying the disability of a decree-holder to execute the decree obtained against the father against the properties allotted to the son in partition was that the father's power to sell the son's interest in theproperty came 9 an end on partition, how does the fact that the son was added as a party to the suit and later on was exonerated keep alive that power ?
After the son was exonerated from the suit, the further progress of the suit would be on the basis that it was filed only against the father. If the decree was made against the father alone after such exoneration, it would not be different in content or character from that made in a suit to which the son was not made a party. If the supervening partition puts an end to the father's power in one case, it should equally do so in the other case. In that context, the exoneration of the son is of no relevance. Indeed if the son was exonerated from the suit or the suit was dismissed against him, there would be scope for argument contrarywise and to come to an opposite conclusion. It may be argued under certain circumstances that as the suit was dismissed against the son, by that order of dismissal the court must be deemed to have decided against the liability of the son to meet the father's debt.
There are decided cases where such a contention was raised but rejected, having regard to the facts of those cases. In -- 'Shiamlal v. Ganeshilal', 28 All 288 (M), where on a suit brought against the father and son in a joint Hindu family upon a promissory note executed by the father alone the son was exempted from liability on the note on the ground that he was no party to it, when it was contended that such exoneration had the effect of relieving the son of his liability to meet the father's debt, it was held that the said exoneration left the son exactly in the position in which he would have been if he had not been impleaded in that suit, and it left him liable as a Hindu son to pay any debts of his father not shown to be tainted with immorality.
So too Walsh J. pointed out in -- 'Hanumantha-rao v. Venkatakrishnappa', AIR 1933 Mad 817 (N) that even where the sons have been exonerated from the decree, they will still be liable to pay the debts if they are not illegal or immoral
In -- 'Reddikrishnan Naidu v. Chintala Somi Naidu', AIR 1940 Mad 544 (O) a Division Bench of this court consisting of Leach C. J. and Krishna-swami Aiyangar J. expressed the same view when they held that a decree obtained against a Hindu father, after his sons who had been impleaded in the suit had been exonerated and dismissed therefrom, can be executed against the sons' interest in the joint family property. At page 545 the learned Judges observed:
'A decree was passed against the father after thesons had been dismissed from the suit, and thepassing of the decree gave to the decree-holdersa new right which they could enforce againstthe sons.'
So too- in -- 'Periaswami v. Vaidiallngam Pillai' : AIR1937Mad718 , Vardachariar and Pandrang Row JJ. considered a case in which the suit was filed against the father and his sons but before judgment was passed the suit was withdrawn as against the sons, and held that the withdrawal of the suit as against the sons did not exonerate them.
Leach C. J. and Lakshmana Rao J. In -- 'Kumba-konam Mutual Benefit Fund Ltd. v. Ramaswami', AIR 1946 Mad 396 (Q) followed the principle laid down in the aforesaid two decisions and held that the withdrawal of an application for a personal decree against the minor son would not preclude the operation of the principle of the pious obligation rule of Hindu law. At page 397 the learned Judges observed:
'We agree, however, that, if the dismissal of the sons from the suit can be read as amounting to a decision by the court that their interests in the family property are not liable for the debt, the pious obligation rule cannot be applied against them in execution of the decree obtained against the father. Much depends on the circumstances under which the dismissal takes place.'
It will be seen from the aforesaid decisions that independently of the debt arising from the original transaction entered into by the father, a decree passed against him in respect of the transaction by its own force creates a debt as against him and the sons are under an obligation to discharge the same unless they can show that the debt is illegal and immoral. The exoneration of a son from the suit, or the dismissal of it against him would not exonerate him from his liability under the Hindu law unless in dismissing the suit against him the Court expressly or impliedly held that he was not liable for the father's debt. That would depend upon the facts of each case. But it was never contended, and none of the aforesaid cases recognised, that the dismissal of a suit against the son would put him under greater disability than he would be if he was not impleaded in the suit. It was not contended because that such a contention could not be based upon any logical principle.
But it Is said that two decisions of this Court in : AIR1929Mad898 and : AIR1944Mad393 clearly lay down the fact of exoneration of the son from the suit would lead to that legal position.
The facts in : AIR1929Mad898 are: The father of the plaintiffs executed a promissory note dated 14-9-1914. The first defendant the creditor, brought a suit upon the promissory note. To the suit though the sons were made parties, they were exonerated and a decree was passed only against the father. In execution of the decree, he purchased the property in the name of his father, the 2nd defendant, on 12-2-1919. A partition of the plaintiffs' family was effected by a compromise decree dated 16-11-1914 i.e., subsequent to the execution of the promissory note on which the decree against the father was obtained.
Three points were raised before the learned Judges. The first was that there was a partition in 1908, but that was negatived. The second ground of attack was that as the sons were exonerated and the decree was a personal one obtained against the father, the shares of the sons in the family properties were not liable to be sold. This was also rejected on the basis of the Full Bench judgment in -- 'Subramania Aiyar v. Sabapathi lyer', AIR 1928 Mad 657 (R), to the effect that a simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons after a 'bona fide' partition between the father and sons,
The third point on the foot of the exoneration was also not accepted in view of the decision in -- 'Venkureddi v. Venkureddi', AIR 1927 Mad 471 (S), where it was held that when the father and the sons had been impleaded in a suit to recover the debt from the father and the sons had been exonerated, nevertheless the sons' share was liable for the father's debts.
After disposing of the three contentions, the learned Judges following the well-established principle, namely, that the only objection that the sons can raise to the liability of their shares for their father's debts is that such debts are Immoral or illegal held that the sons In that case could not question the sale for they failed to establish that the debt was incurred for immoral or illegal purposes. It will be seen from the aforesaid analysis of the facts, arguments and the conclusion arrived at by the learned Judges that they did note expressly lay down any proposition of law to the effect that if the sons were exonerated, the subsequent partition between the members would not be a bar for the executability of the decree obtained against the father against the properties allotted to the sons in the partition.
Indeed, the judgment discloses that no attempt was made on the part of the decree-holder to contend that the decree against the father could be executed against the property allotted to the shares of the sons in the partition on the ground that the sons were made parties but were subsequently exonerated. It was assumed that the Full Bench ruling in -- 'AIR 1928 Mad 657 (R)' enabled the decree-holder to execute the decree against the sons' property; but It was the sons that raised the contention that as they were exonerated from the suit, the said ruling would not enable the decree-holder to proceed against them.
But it is pointed out that the learned Judges distinguished the observations of Ananthakrishna Aiyar J. in -- 'AIR 1928 Mad 657 (R)' on the ground that the sons were made parties to the suit and therefore they must be deemed to have held that that fact was crucial for the determination of the question raised before them. As the argument turned upon that fact, it will be convenient to quote the relevant passage:
'The appellants, however, sought to rely on certain remarks in the judgment of Ananthakrishna Aiyar J. at page 676 (of AIR 1928 Mad 657 (R)). In the first place they must be regarded as obiter and In the second place the remark that 'the creditor should make the father and the son both parties to the suit and 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 the properties allotted to the sons under the partition', does not cover the present case, for the sons were made parties to the suit.'
No doubt this stray observation of the learned Judges lends scope for the argument now advanced before us but I am inclined to observe that though it was a distinguishing feature on the facts, the learned Judges did not consciously base their decision on that fact, for the sons did not contend before them that the partition made a difference in the procedural law 'vis a vis' the sons' liability.
Even if they intended to lay down any such proposition for the reasons aforesaid, I find it difficult to discover any rational basis for such distinction.
This Judgment was followed by Happen J. in : AIR1944Mad393 . There a creditor filed a suit on a promissory note against the father and his sons. The sons were exonerated but a decree was made against the father. Between the date of the decree and the date of attachment there was a partition among the members of the family. The question was whether the sons' shares were not attachable by reason of the intervention of the partition. The learned Judge understood the decision in : AIR1929Mad898 , as laying down that the exoneration of the sons in the suit would enable the decree-holder to execute his decree against the sons after partition and sitting alone thought that he was bound by it. As I have already stated, the Divisional Bench did not lay down any such proposition, and even if they were deemed to have done so by reason of the stray observation made, in my view it was not sound. I therefore hold that the exoneration of the I sons in the suit would not make any difference in the application of the principle, namely, that a decree against the father could not be executed after partition against the properties allotted to the sons' shares.
10. The next point raised is that the question of the liability of the properties that fell to the share of the son for the decree against the father is a question that arises in execution of the decree between the parties to the suit and, therefore, that question falls to be considered in execution and a separate suit is not maintainable.
To appreciate this contention some relevant facts may be recapitulated. The creditor filed Order 8. No. 270 of 1946 for recovery of the amount due on the promissory note executed by the father the first defendant, his son the second defendant, and the first defendant's father, the third defendant. The suit against the third defendant was dismissed by the first Court. The second defendant was also exonerated by the appellate Court on the following grounds;
'Still the second defendant's vakil raised a new point in appeal that the suit was based only upon the pronote and not upon the debt 'qua' debt, and that, therefore, no decree can be passed against anyone other than the executant himself, For this he relied upon -- 'Birkeswar Raut v. Ramlochan Pandey', : AIR1934Pat629 (T), which clearly lays down that 'where the action is based on a hand-note, members of the family other than the member -who executed the hand-note cannot be liable in such action.' The plaintiff's vakil tried to go over the same by stating that there was a reference to the debt in the earlier portion of the plaint. But Since the plaint has to be read as a whole and as there is no specific claim on the debt as such either in the main body of the plaint or in the cause of action paragraph, the objection raised for the minor appears sound.'
For the aforesaid reasons, the second defendant was exonerated. Though the learned counsel contended that the judgment of the appellate Court was wrong, as the said Judgment had become final it would be binding on all the parties. If so it follows that the second defendant was exonerated because to a suit on a promissory note executed by the father he was neither a necessary nor proper party.
The question is whether under those circumstances the provisions of Section 47, Civil P. C. are attracted. The material part of Section 47 reads: '47 (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
Explanation: For the purposes of this section, a plaintiff whose suit has been dismissedand a defendant against whom a suit has beendismissed, are parties to the suit.'Can it be said that the second defendant whowas exonerated from the suit on the ground thathe was neither a necessary nor proper party wasa party to the suit within the meaning of theexplanation? _____
Under similar circumstances a Full Bench oS this court held in -- 'Abdul Sac v. Sundara Mudaliar', AIR 1930 Mad 817 (U) that such a defendant was not a party within the meaning of 8. 47. There, in a suit to enforce a mortgage one of the defendants who was in possession pleaded that he did not derive his title from the mortgagor but independently of him, and the court held that he was not a necessary party and dismissed the suit as against him. The plaintiff who got a decree on the mortgage evicted the defendant in execution, and on application by the evicted defendant, the executing court put him in possession. The plaintiff preferred an appeal to the District Court. The question was whether the defendant against whom the suit was dismissed was a party to the suit within the meaning of Section 47, Civil P. C.
The Pull Bench held that the proper order to pass in a case where a Court holds that a defendant had been wrongly impleaded as a party was not to dismiss the suit as against him but to strike out his name from the record and that such a defendant was not a 'party to the suit' within the meaning of Section 47. At page 820 the learned Judges made the following observations:
'In the latter case, on the other hand, he is a person who ought never to have been made a party to the suit at all, and not having been properly impleaded, the plain duty of the court is to strike his name out. If the respondent's contention is correct, then it means that although the appellant ought not to have been made a party to the suit and the District Munslf held that he had been Improperly impleaded and instead of striking his name out adopted the wrong procedure in dismissing the suit as against him, he is to be placed in a worse position than a party in respect of whomthe court does adopt the correct procedure. It seems to me to be a contradiction to say that a person who is held at the trial of the suit not to be a proper party to the suit remains still a party to the suit.'
The Full Bench came to that conclusion on a consideration of the earlier decisions and the relevant provisions of the Act. I entirely agree with the observations and the conclusion arrived at by the learned Judges.
That decision directly applies to the facts of the present case. Here, as there, the second defendant was exonerated from the suit, and the suit was dismissed against him on the ground that he was not a necessary and a proper party in a suit against the father on the promissory note executed by him. The proper order should have been to strike out the name of the second defendant from the record. When the court held that he was not a necessary party and exonerated him from the suit, it is not possible to hold that he remained a party to the suit. It he is not a party to the suit, it follows that Section 47 has no application.
11. This conclusion places the appellant in a difficult position. If Section 47, Civil P. C., will not apply, no appeal lay against the order of the District Munsif to the court of the Subordinate Judge, and from the order of the Subordinate Judge to this Court. Learned counsel for the respondent contended that the appeal should be dismissed on the ground that it was not maintainable. If the learned counsel intended to advance a serious argument on this question, he should have done so at the commencement of the hearing of the appeal.
It has been a well-established convention, and that rests both on principle and convenience, that a preliminary point of this nature should be raised at the beginning. Otherwise, the court's time would have been, unnecessarily wasted. I cannot speaking for myself, tolerate this situation of lengthy arguments on merits for hours or days and at the fag end the learned counsel for the respondent raising a preliminary point as regards the maintainability of the appeal itself. In the present case, this question of the maintainability of the appeal was not even raised in the court below. If raised, the appellant would have withdrawn his appeal and filed a revision to the High Court directly against the order of the District Munsif.
In the circumstances, this is a fit and proper case for us to set aside the order of the learned. District Munsif of Tenali in exercise of our revi-sional jurisdiction. The powers of the High Court under Section 115, Civil P. C., are very wide. Under that section the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and make such order in the case as it thinks fit. Under this section, therefore, the High Court may of its own motion call for any record or may do so at the instance of a party, it does not preclude the High Court from exercising its powers of revision 'suo motu' if the other conditions laid down in the section are satisfied. A Divisional Bench of this Court laid down the scope of the corresponding section of the Civil Procedure Code as early as 1881 in -- 'Andrew Anthony v. The Rev. J. M. Dupont', 4 Mad 217 (V). The learned Judges observed:
'The question then arises whether this court cannot interfere under Section 622, C. P. C., without an application from a party. In all probability the party aggrieved has abstained from action owing to the action taken by the Judge. There is nothing to limit the power conferred by Section 622 to cases in which there is an application by a party.'
This view has never been questioned and indeed there are innumerable decisions wherein the High Court had interfered 'suo motu' against orders of the subordinate tribunals when an appeal filed was held to be not maintainable.
12. For the aforesaid reasons I hold that the decree is not executable against the properties allotted to the second defendant in the partition and accordingly set aside the orders of the courts below. As I am interfering with the orders of the courts below 'suo motu' in exercise of the revisional jurisdiction, I think this is a fit case to direct the parties to bear their own costs.
Panchapakesa Aiyar, J.
13. I agree.