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M. Narayanan Vs. G. Subramaniam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtChennai High Court
Decided On
Reported in(1972)2MLJ212
AppellantM. Narayanan
RespondentG. Subramaniam and ors.
Excerpt:
- .....learned subordinate judge of coimbatore in o.s. no. 19 of 1969 claiming two-thirds share in the suit properties. to that suit, the creditor who obtained a decree in o.s. no. 495 of 1966 (petitioner herein), was impleaded as a party. the contention of the plaintiffs in the said suit was that the decrees obtained against the father were not binding that the suit properties are the ancestral properties and could not be proceeded against and that the amounts borrowed from defendants 2 to 4 are not for the benefit of the joint family. subsequently to the order which is the subject-matter of the present revision, the learned subordinate judge of coimbatore delivered judgment in the said suit holding that the debts are binding on the plaintiffs. the first plaintiff was granted his one-third.....
Judgment:
ORDER

V.V. Raghavan, J.

1. The first respondent decree-holder in the Court below is the petitioner herein. The above revision petition arises in execution proceedings. In O.S. No. 495 of i966, the petitioner herein obtained a decree and in execution attached the joint family property belonging to the judgment-debtors. After attachment was effected, the sons, one of them being a minor have filed the present application claiming that they are entitled to their two-third share of the property that the decree is not binding on them and that the one-third share of the father alone could be brought to sale in execution and that the decree is a personal decree against the father. The suit was for recovery of an amount from the first defendant-company and the second defendant as director of the first defendant-company. That suit was decreed, and the ancestral properties of the second defendant were brought to sale and the properties were attached and it is at that stage the present application by the sons is filed to raise the attachment.

2. The 1st respondent decree-holder filed a counter contending that the sons have no locus standi to file the petition. The lower Court upheld the claim of the sons and ordered the attachment of the two-thirds share of the sons to be raised, with the result that the decree-holder was directed to proceed only against the one-third share of the father. Against the said decision, the present revision is filed.

3. Normally, I would not have interfered with the order of the lower Court as the petitioner has an effective alternative remedy by way of suit under Order 21, Rule 63 of the Code. On the facts of the case, I am compelled to interfere with the order of the lower Court to render justice between the parties. What happened is that the sons, not satisfied with filing the claim petition, filed a suit for partition before the learned Subordinate Judge of Coimbatore in O.S. No. 19 of 1969 claiming two-thirds share in the suit properties. To that suit, the creditor who obtained a decree in O.S. No. 495 of 1966 (petitioner herein), was impleaded as a party. The contention of the plaintiffs in the said suit was that the decrees obtained against the father were not binding that the suit properties are the ancestral properties and could not be proceeded against and that the amounts borrowed from defendants 2 to 4 are not for the benefit of the joint family. Subsequently to the order which is the subject-matter of the present revision, the learned Subordinate Judge of Coimbatore delivered judgment in the said suit holding that the debts are binding on the plaintiffs. The first plaintiff was granted his one-third share subject to the liability to discharge the debts due to defendants 2 to 4, of whom the decree-holder in O.S. No. 495 of 1966, was one. In regard to the share of the minor second plaintiff in O.S. No. 19 of 1969, the learned Subordinate Judge held that the partition is not in the interest of the minor and, therefore, no share was decreed to the minor plaintiff. On the findings in the said suit that the debt is binding on the family, the creditor will be entitled to proceed against the properties of the family and, therefore, the result is that the petitioner in the above Revision Petition is entitled to proceed against the entire properties for recovering the amount I due to him.

4. I am, therefore, of opinion that the order of the lower Court raising the attachment in respect of the two-third share of the sons should be set aside. The Revision Petition is allowed and there will be no order as to costs.


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