Sen and Niamat-ullah, JJ.:— This is an appeal by the plaintiffs and arises out of a suit for a declaration that a house and certain zamindari property were not attachable in execution of a decree held by Kishan, defendant No. 1, against Hari Ram, defendant No. 2, who is the father of the plaintiffs. On the 6th of August, 1925, Kishan sued Hari Ram on a promissory note, elated the 29th of April, 1923, and obtained a decree against him on the 16th of February, 1926. In execution of this decree the properties in dispute were attached on the 20th of June, 1926, and eventually sold to the decree-holder on the 15th of November, 1926. The judgment-debtor did not intervene at any stage of the execution proceedings.
The present suit was instituted by the minor sons of the judgment-debtor on the 29th of November, 1926. The court of first instance decreed the claim with reference to the house, but dismissed the claim with reference to the zamindari property. The lower appellate court has reversed the decision of the trial court with reference to the house, with the result that the plaintiffs' claim stands dismissed in its entirety.
The court of first instance definitely came to the conclusion that the house belonged to a joint family consisting of Hari Ram and his sons and that Hari Ram was an agriculturist and that his chief profession in life was agriculture. It gave the plaintiffs a decree on the ground that they had a share in the ancestral house and that this property was immune from attachment under section 60, clause (1), proviso (c), of the Code of Civil Procedure. The lower appellate court reversed the decision on the ground that it had not been proved satisfactorily that the main source of income of the plaintiffs was agriculture and that the property having passed out of the hands of the family by sale in execution of the decree against the father, the sons were not entitled to the protection, of section 60 of the Code of Civil Procedure.
The finding of the lower appellate court that it has not been established that the main source of the income of the plaintiffs was agriculture may be open to criticism. The decree-holder had admitted before the trial. Judge that Hari Ram was an agriculturist and that his chief profession in life was agriculture. The finding that the house was ancestral had not been impugned in appeal. While disagreeing with the lower appellate court on the above points we are of opinion that we cannot displace the finding of law reached by the lower appellate court that where a house belonging to an agriculturist passes out of his hands by reason of an execution sale, there having been no intervention on his part at the time when the house was attached, he cannot challenge the validity of the sale at a later stage by a separate action. The sons do not possess a higher right than the father, because the debt was binding upon them and they are bound by the consequences of the execution proceedings in which the father must be deemed to have represented the entire family consisting of himself and his sons. This appears to us to be the natural corollary of the decision in Lala Ram…(Plaintiff); v. Thakur Prasad…(Defendant).* (1918) I.L.R, 40 All., 680, by which we are bound.
The result is that we affirm the decision of the court below and dismiss this appeal with costs.