1. The appellant obtained a decree against the 1st respondent in respect of a debt binding upon the family consisting of the 1st respondent and his minor son, the 2nd respondent. The 2nd respondent had been impleaded in the suit, but was given up, and a decree was passed against the father alone. After the decree the father and son have divided their properties as a result of a partition suit. The appellant now seeks to execute the decree against the father by proceeding against the property allotted to the separate share of the 2nd respondent, contending that the 2nd respondent is liable for the debts incurred for family-necessity prior to partition and that execution can be taken against his property.
2. It is true that the property which is given to the 2nd respondent on partition may be liable in proper proceedings for the debt incurred by the father, but it does not necessarily follow that the decree against the father can be executed against the son, and there are observations to this effect in Jagannatha Rao v. Viswesam A.I.R. 1924 Mad. 682. In the first place a decree must be executed against the judgment-debtor or his legal representative. In the present case it cannot bet said that the 2nd respondent is the legal representative of his father in respect of his separate property. Further there is the difficulty which meets the appellant that if it were to he held that the father retained some sort of right in this separate property of the son and that therefore it can be proceeded against as the property of the father, no leave has been obtained to institute these proceedings under Section 28 of the Provincial Insolvency Act.
3. A further request is put forward by appellant that this petition should be remanded for a finding as to whether the partition was fraudulently effected in order to defeat his debt. The point was incidentally but net specifically mentioned in the execution petition. It was not argued in either of the lower Courts and no request was made either in the trial or in the lower appellate Court for taking evidence on this point, and it is too late now to raise such a question. The second appeal is therefore dismissed with costs.