1. This is a second appeal preferred against the decree and Judgment of the learned Subordinate Judge of Kakinada in A. S. No. 207 of 1947 reversing the decree and judgment of the learned District Munsif of Feddapuram in O. S. No. 232 of 1946.

2. The facts are: The plaintiffs, sons of one Sitaramaswami, sued for possession of S. No. 28/12, eastern portion 24 cents in extent, and recovery of Rs. 30 towards past mesne profits on the good of the following allegations:

On 22-9-1937 and 7-1-1938 Sitaramaswami executed two promissory notes to defendant 2, K. Venkataratnam. On 7-3-1939 defendant 2 filed S. C. No. 99 of 1939 against Sitaramaswami to recover the amount due under the said promissory notes. During the pendency of this suit on 26-4-1939 the minor plaintiffs, sons of Sitaramaswami filed a suit for partition against Sitaramaswami in O. S. No. 102 of 1939. On 17-8-1939 S. C. No. 99 Of 1939 was decreed. On 20-11-1939 the suit property was at-tached in execution. On 22-4-1940 a preliminary decree was passed in the partition suit to the effect that A and C schedule properties were to be divided into three shares and that the plaintiffs were to be put in possession of two shares.

On 30-4-1940 there was a sale in court auction of suit item in favour of defendant 1, the brother of defendant 2 and the decree-Holder in S. C. No. 99 of 1939. On 20-9-1940 final decree was passed in the partition suit in I. A. No. 578 of 1940 and plaintiffs were allotted lots A and C and the defendant, therein, the father, was allotted lot B. S. No. 28/12 is included in the C lot. On 19-11-1940 Sitaramaswami was dead. On 13-12-1940 the plaintiffs, sons of Sitaramaswami, took possession through Court of lots A and C. It is seen from Ex. D-3 that the sons of Sitaramaswami the plaintiffs, have been impleaded as his legal representatives. On 9-2-1941 defendant 1 obtained delivery of possession of the suit Item as he was the court auction purchaser. The plaintiffs sons reciting that they had been impleaded as legal representatives of their deceased father filed E. A. No. 289 of 1941 against the court auction purchaser for redelivery. On 6-9-1941 the petition, was dismissed as not pressed. No suit was filed within one year thereafter. In 1946 the present suit had been filed, for the reliefs mentioned above.

3. Three points which fall for determination are viz., whether the sons' suit must fail unless they can establish that the debt for which the decree was passed was for an immoral purpose as they have to do in a suit to set aside a money decree and secondly whether the suit is maintainable at all by reason of O. 21, B. 103, C. P. C., and thirdly whether the decree-holder in S. O. No. 99 of 1939 was bound to institute a separate suit against the sons of Sitaramaswami in order-to make the joint family properties in their hands liable for the decree debt.

4. Point 1: The plaintiffs' suit for partition O. S. No. 102 Of 1939 was filed on 26-4-1939 and it was decreed only on 22-4-1940. A suit by a minor for partition if it ends in a decree its effect is to create a division of status from the date of the plaint, even though only a preliminary decree has been passed. But the mere filing of the suit by a minor does not effect severance of his interest from the joint family, even though the suit has been filed both by the father and his minor son for partition against the other coparceners, because where a suit has been instituted for partition on behalf of a minor, what the Court has to find is whether the partition is for the benefit of the minor and if it is satisfied that a decree for partition is in the minor's interest, the Court's duty is to grant a decree. But if the Court finds that the partition will not be beneficial to his interest or there is nothing like malversation or hostility on the part of the manager to show that it will be for his benefit, the Court ought not to decree the suit. That is why it has been laid down that a minor's suit for partition does not abafe if he dies before the Court has found that the partition is for his benefit and it is open to his legal representative to proceed with the trial and obtain a decree on his showing that when the partition suit was instituted it was lor the benefit of the minor.

The Full Bench decision in -- 'Rangasayi v. Nagaratnamma', AIR 1933 Mad 890 (A), embodying these principles has been analysed in -- 'Rama-rao v. Venkata Subbayya', AIR 1937 Mad 274 (B). as follows: "The 'ratio decidendi' of the Full Bench on the other hand is intelligible; the exercise of the option by the guardian does effect a severance but the severance so to speak remains in a State of suspended animation till the Court ratifies the act; the Court takes upon itself the task of deciding that which the minor if he were an adult would have done himself, namely, whether it is beneficial or not to become separate, It is not a fresh expression of volition by the Court; the volition was already expressed by (he guardian on behalf of the minor; the Court puts the seal of approval oh it on behalf of the minor and for him. Before 22-4-1940, that is on 17-8-1939 the suit S. C. No. 99 of 1939 was decreed against Sitaramaswami. On 20-11-1939 in execution of that decree the suit item was attached. Therefore, in spite of the institution of the partition suit, on that date Sitaramaswami had a disposing power over the item attached and therefore the attachment was quite valid under S- 60(1), C. P. C. Secondly on 30-4-1940 there was the sale in court auction to defendant 2 in pursuance of the attachment effected on 20-11-1939, The plaintiffs have got the suit item only subsequently on 20-9-1940 as per the final decree and on that date the suit property had validly passed out of the family,

5. If so what are the sons' rights after sale? Where the father has contracted a debt for is own personal benefit, the creditor may obtain a money decree against the father alone, and may enforce the decree by attachment and sale of the entire coparcenary property including the sons' interest therein. The sons, though not parties to the suit, are bound by the sale by reason of their pious duty to pay their father's debt, and they cannot recover their share of the property unless they prove (and the burden lies upon then to prove) that the debt was contracted ay the father for an immoral or illegal purpose. This rests on the theory that as the father can effect a sale without suit of the entire joint family property including his sons' interest therein in favour of the creditor for the payment of an antecedent debt, so the creditor may legally procure a sale of it by suit: -- 'Nanomi Babausin v. Modhun Mohun', 13 Cal 21 (PC) (C), -- 'Ramasamayyan v. Virasami Iyer', 21 Mad 223 (D), -- 'Kunhali v. Kesava', 11 Mad 64 (E). The fundamental principle is that where joint family property is sold in execution of a decree though obtained against the father alone, and for a debt contracted by him for his own personal benefit, the sons cannot claim to recover their share of the property unless they show that the debt was contracted by the father to the knowledge of the lender for an immoral or illegal purpose and that the purchaser had notice that it was so contracted: -- 'Satnarain v. Beharilal', AIR 1925 PC 18 (F), -- 'Minakshi Naidu v. Immudi', 12 Mad 142 (PC) (G), -- 'Suraj Bunsi Kcer v. Sheo Pershad Singh', 5 Cal 148 (PC) (H), -- 'Bhagbut Pershad Singh v. Mt. Girija Koer', 15 Cal 717 (PC) (I), -- 'Jahan Singh v. Harbat Singh', AIR 1935 All 247 (J) and -- 'Krishnaji Lakshman v. Vithal Ravji', 12 Bom 625 (K).

A distinction has, however, been made by the Judicial Committee between the case where the purchaser at the execution sale is a stranger to the suit and the case where he is the decree-holder himself. The two leading cases on the subject are -- 'Girdharee Lall v. Kantoolal', 14 Beng LR 187 (PC) (L) and -- '5 Cal 148 (PC) (H). The position, then, is that where joint family property is sold in execution of a decree against the father, then if the purchaser is the decree-holder himself the sons are entitled to recover their interest merely by proof of the immorality or non-existence of, the debt. But if the purchaser is a stranger to the suit, they cannot recover their share unless they prove that the debt was contracted for an immoral or illegal purpose, and also that the purchaser had notice that it was so contracted. In the instant case the sons have not challenged and there is no scope foV impeaching the money decree on the ground that the debt for which the decret was passed was for an immoral purpose & therefore on this short ground alone the suit must fail.

6. Point 2: The auction purchaser impleaded the plaintiffs as the legal representatives of the judgment-debtor Sitaramaswami in order to enable him to obtain delivery of possession of the suit item and obtained possession. Then these plaintiffs filed E. A. No. 229 of 1941 for redelivery. This petition was dismissed on 6-9-1941 as not pressed. It is well settled that where there is an adverse order in execution and that is not got set aside by means of a suit, the order becomes final and it will not be open to the defeated claimant to reagitate the matter in subsequent suits. Therefore, it was urged both in the lower Court and here that the order in E. A. No. 229 of 1941 was not an adjudication on merits after investigation. But the test is to see, where the order is under R. 63 or 103 of O. 21, C. P. C., whether the order is against the claimant and it does not mean that the order must involve an adjudication on merits after investigation. The principle underlying is the speedy settlement of claims and that if a person chooses to take advantage of a summary procedure he must suffer its disadvantages as well as its benefits and constructive 'res judicata'. If the petitioners had in fact asked to be allowed to withdraw the petition and the Court had acquiesced in the course, it might very well be that the order would not be an adverse order within the meaning of the rule; but it cannot be said that because a claimant says to the Court that he does not press the petition and consents to an order of dismissal, it is not an adverse order.

Therefore in the well known case of -- 'Gan-

nanore Bank Ltd. v. Madhavi', AIR 1942 Mad 41 (FB) (M), where the order "Petition not pressed.

It is dismissed" was passed on a petition which was within R. 58 and the petitioner had not sought permission to withdraw it without pre judice to his rights, it was held to be obviously an order which was against him and required him to file a suit if he wished to reopen the matter.

Therefore the present suit itself is not maintain able.

7. Point 3: On the question where the decree-holder had instituted a suit only against the debtor father in regard to a pre-partition debt, 'ex facie' not tainted by illegality or immorality, and during the pendency of which suit there has been a partition between the debtor father and his sons and no provision has been made in partition decree for the discharge of this debt, the Courts in India have been much exercised by two conflicting sets of circumstances. First of all a catena of decisions -- 'Subramanla v. Sabapathi', AIR 1928 Mad 657 (FB) (N), -- 'Annabhat v. Shivappa', AIR 1928 Bom 232 (O) -- 'Jewahar Singh v. Paradu-man', AIR 1933 Lah 116 (P), -- 'AM Krishna V. Lala Nandanji', AIR 1935 Pat 275 (FB) (Q), --'Bankeylal v. Durga Prasad', AIR 1931 All 512 (FB) (R), -- 'Raghunandan v. Motiram, AIR 1929 Oudh 406 (FB) (S), the principles on which they proceed now having been approved by the Supreme Court in -- 'Pannalal v. Naraini', (T), has established that a son is liable even after partition for the preparation debts of his father which are not immoral or illegal and for payment of which no arrangement was made ft the date of the partition from and out of the assets of the joint family which have come into his hands.

But this has to be coupled with the well known propensity of the father and the sons and their advisers to defeat and delay these creditors by the filing of partition suits and protracting proceedings resulting in the creditor not unoften being to realise his vyavaharika debts by reason of limitation and other difficulties incidental to his haying to file a separate suit against the sons of his debtor. Secondly Courts have also experienced that in regard to Ayyavaharika debts contracted by a father not caring for the welfare of the joint family consisting not unoften of minor coparceners and a helpless. wife, a dominating creditor proceeds against the father alone obtains a decree, and then seeks to make the joint family properties in the hands of. the minor coparceners liable without the latter being able to put forward then case before the Court, viz., that the debts are tainted by illegality or immorality and that in the partition sufficient assets had been allotted to the father to discharge the debts contracted by him. Therefore, tossed between these conflicting considerations Courts have tried to make execution proceedings the vehicle for the going into these twin points, viz., Vyavaharika nature of the debt and the provision made in partition for the discharge of the same. This has been sought to be affected in two ways, viz., by the theory of is presentation and by making use of Ss. 52 and 53, C. p. c.

8. The theory of representation in order to get over the hardship of a creditor being driven to file separate suits instead of resolving the matter in execution proceedings, has been resorted to by the Madras High Court. In the Full Bench decision in -- 'Venkatanarayana v. Venkata Soma-raju', AIR 1937 Mad 610 (FB) (U), it was held that if the father or manager represented the family in the litigation and the members of the family were substantially parties to trie suit through the manager though not 'eo nomine' parties on the record the decree so obtained can be executed against those who were either actually or constructively parties to the suit. At p. 612 Venkata-subba Rao J., after considering the decisions of the Judicial Committee in -- 'Daulat Ram v. Mehr Chand', 15 Cal 70 (PC) (V), observed:

"That the managing member could effectively represent the entire family and that a decree passed against, him would be. binding upon all the members, and secondly, that it is not necessary that it should be stated in the pleadings in express terms that he is suing or is being sued as such manager, the suit will be deemed to have been brought by or against him in his representative character if the circumstances of the case show that he is the manager of the family."

Dealing with the question whether subsequent partition would make any difference, the learned Judge states at p. 614 that it does not and gives the following reasons for his opinion:

"The reason for holding that the members not joined should be held liable is, that they are substantially parties to the suit through the manager, in other words, they are sufficiently represented, though not 'eo nomine' parties on the record. It follows from this that the decree can be executed not only against the parties whose names appear but also against those who must be deemed to be constructive parties. In this view, it is immaterial whether the family continues to remain joint or became divided."

Venkataramana Rao J. who agreed with Venkata-subba Rao J., states his view in a different manner but to the same effect. At p. 617, the learned Judge observed :

"Therefore, where a father or other manager is sued as a, representative of a family, the other members of the family must be held to be substantially parties to the suit through such manager. The fact that they are not parties 'eo nomine' will not render them any tile less parties to the suit."

Again, at p. 617, the learned Judge continues:

"When they must be held to be parties to the suit, it is immaterial what the character of the property in their hands is, whether it is still undivided property or has become separate property by division."

The learned Judge also lays down the presumption that

"Where the suit relates to a joint family property & the person sued is either the father or the eldest member, the accredited head of the family, it must be presumed that he was sued as representing his family and he need not be described as such in the pleadings, nor need the decree be specifically passed against him as such."

This decision has been subsequently followed by another Bench of this High Court in -- 'Venkata-ratna Rao v. Venkatasubbiah', AIR 1950 Mad 130 (W). The Full Bench decision in -- 'AIR 1937 Mad 610 (U), itself is a complete departure from the position taken in -- 'Kuppan Chettiar v. Masagounden', AIR 1937 Mad 424 (X), where it was held that in execution o a decree obtained against the father, after partition of the joint family properties between the father and the sons, the decree could not be executed against the properties that fell to the share of the sons even though the said decree was obtained on the basis of a preparation debt. This decision was considered and accepted as laying down the correct law in -- 'Official Receiver, Guntur v. A. Seshayya', AIR 1941 Mad 262 (Y). Besides this Full Bench being a departure from this line of decisions like -- 'Kuppan Chettiar v. Masa Gounder' AIR 193'' Mad 424 (X), some doubts on the principles laid down by the Full Bench were, thrown in -- 'Firm Schwebo v. Subbiah', AIR 1944 Mad 381 (Z). The observations therein throwing doubts were not accepted by the subsequent Bench decision in -- (W). Tills Full Bench decision nas been subsequently commented upon by another Bench of this Court in -- 'Ramanathan Chet-" tiar v. Ramanathan Chettiar', 1949-2 Mad LJ 751 (Z1), as follows:

"It is desirable to deal shortly with the arguments of Mr. T. L. Venkatarama Aiyar (as he then was), the learned counsel for the respondent, to the effect that even if the division in status set up by the plaintiff were true, he would still be bound by the security given by Valravan Chettiar and his share of the house could be validly sold in execution of the consent decree inasmuch as the debt is one binding on the family. In -- ' AIR 1937 Mad 610 (FB) (U), two of the learned Judges Venkatasubba Rao and Venkataramana Rao JJ. were of the opinion that if pending a suit in respect of a money claim against a person who happened to be the manager of a joint Hindu family a partition is effected among the members of the family, the money decree passed in the suit against the quandom manager should be executed against the shares of the family property allotted by the partition to the junior members, provided the debt was one binding on the family. The weight of authority, both before and after the decision above referred to in which this opinion was given, is against this view. After partition the power of the father or the manager to represent the other members of the family is at an end and it is difficult to see how the decree passed against the manager after partition can be executed against the divided members of the family who are neither actual parties, or on any theory of representation could be deemed to have been parties to the suit or decree. The disposing power of the father or manager over the shares of the other meir.-fcers for satisfying debts binding on the family having come to an end by the division (See -'Satnarayan v. Sri Kisnandas', AIR 1936 PC 277 (Z2), it is difficult to see how a Court executing the decree passed against the quandom manager of the family can sell the shares of the junior members which the judgment-debtor himself could not have sold. Reliance cannot Be placed on the opinion of the two learned Judges in -- ' AIR 1937 Mad 610 (FB) (U)', in view ot the observations of the later Pull Bench reported in -- 'Nagi Reddi v. Somappa', AIR 1943 Mad 1 (FB) (Z3). We therefore hold that if the division in status alleged by the plaintiff to have taken place were true, it is not open to the defendant to sell the plaintiff's share of the family house in execution of the decree."

9. This theory of representation has now been finally considered by the Supreme Court in -- (T)', wherein it has been held approving -- 'Jainarayan v. Sonaji', AIR 1938 Nag 24 (Z4) that

"after a partition takes place, the fattier 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 his 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."

The principles underlying -- 'Kameswaramma v. Venkatasubba', AIR 1914 Mad 328 (Z5), -- 'AIR 1928 Mad 657 (FB) (N),' -- 'Tirumalainuthu v. Subramania', A. I. R. 1937 Mad 458 (26), -- 'Surai-mal v. Motiram', AIR 1940 Bom 22 (Z7), -- 'AIR 1935 Pat 275 (FB) (Q) and -- 'Firm Govindaram Dwarkadas, Bombay v. Nathulal, AIR 1937 Nag 45 (Z8), were considered to be sound. Therefore, the theory of representation for proceedings against the joint family properties in the hands of the sons in execution proceedings must now be abandoned.

10. The Supreme Court decision referred to above resolves these difficulties experienced by Courts in another manner. The question which has been considered in this decision is whether the decree-holder in respect of a Vyavahariha pre-partition debt, and in regard to whose debt no provision has been made in the partition, can proceed in execution against the properties of the separated sons as legal representatives of the deceased debtor father on the foot that even the shares of the separated sons in the family property can be made liable for pre-partition debts provided they are not tainted with immorality and to arrangement for payment of such debts was made at the time of the partition. The Supreme Court has considered the scope of Sections 52 and 53, C. P. C. and stated as follows :

"Section 52(1), C. P. C. provides that when a decree is against the legal representatives of a dead person and is one for recovery of money out of the properties of the deceased, it may be executed by attachment, and sale of any such property. Then comes Section 53 which lays down that for purposes of Sections 50 and 52 property in the hands of a son or other descendants which is liable under Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative'. It is to be noted that before the Civil P. C. of 1908 came into force, there was a conflict of opinion as to whether the liability of Hindu son to pay his father's debt could or could not be enforced in execution proceedings. Under the Hindu law an undivided son or other descendant who succeeds to the joint property on the death of his father or other ancestor does so by right of survivorship and not as heir. In the old Code the term 'legal representative' was not defined and the question arose as to whether the son could be regarded as the legal representative of his father in regard to properties which he got by survivorship on the father's death and whether a decree against the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose. It was held by the Madras and the Allahabad High Courts that the liability could not be enforced in execution proceedings, whereas the Calcutta and Bombay High Courts held otherwise. Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts, one reason for introducing this section may have been or undoubtedly was to enable the decree-holder to proceed in execution against the property that vested in the-son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a comprehensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either that has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under Section 50, C. P. C. In both these sets of circumstances the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.

As we have said already, Section 53, Civil P. C. being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father's debts. It however lays down the procedure to be followed in cases coming under this section and if the son is bound under Hindu law to pay the father's debts from any ancestral property in his hands -- and the section is not limited to property obtained by survivorship alone -- the remedy of the decree-holder against such property lies in the execution proceedings and not by way of separate suit. The son would certainly be at liberty to show that the property in his hands is for certain reasons not liable to pay the debts of his father and all these questions would have to be decided by the executing Court under Section 47, C. P. C. This seems to us to Be the true scope and the meaning of Section 53, C. P. C. In our opinion the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of -- 'AIR 1935 Pat 275 (Q) decided by the patna High Court. The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that Section 47, C. P. C. could have no application when the decree against the father is sought to be executed against the sows during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding. In cases coming under Sections 50 and 52, C. P. C. on the other hand the decree would be capable of being executed against the- sons as the legal representatives of their father and it would only toe a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under Section 47, C. P. C."

11. The net result of this analysis of the case law is that if the decree is obtained against the father in regard to a Vyavaharika pre-partition debt and there has been a partition during the pendency of the creditor's suit and when execution is taken the father is alive, the creditor's remedy in regard to the assets of the joint family in the hands of the sons is only by means of a separate suit and the creditor must file a separate suit and establish the liability in an independent proceeding. But if the debtor father happens to be dead, then the creditor can proceed against tne joint family assets in the hands of the sons under Ss. 52 and 53, C. P. C. and it will be open to the sons in execution proceedings to agitate that the assets 'n their hands are not liable both by reason of the decree debt being Avyavaharika one and /or sufficient assets have been allotted to the father at the partition for the discharge of these debts. Therefore, looked at from this point of view the plaintiff cannot succeed on the ground that their father's creditor should have filed a suit against them and not merely have worked out his reliefs in execution proceedings.

12. In the result this second appeal has to be and is hereby dismissed with costs. No leave.