The defendants 2 and 3 are the appellants in this second appeal which arises in the following way. A decree was obtained in O.S No. 34 of 1917 against the 1st defendant who is the father of the present appellants. An attempt was made in execution to sell the property in 1920 and an attachment petition was put in but it was dismissed for default of prosecution. In 1924 another application to attach these properties was made and the present appellants put in a claim petition Ex. VI on 23rd October, 1924 alleging that subsequent to the decree there had been a partition between them and their father and they had been in possession of the properties that fell to their share and these properties could not be attacbed in execution proceedings for a decree obtained against their father. That claim was allowed, the decree-holder's pleader reporting no instructions. The respondent, who subsequently got an assignment of this decree, put in an execution petition, E.P No. 616 of 1925, to attach and bring to sale the same properties. The appellants put in a second claim petition repeating their earlier plea and taking a further plea that as no suit had been instituted to set aside the order passed on their previous claim petition the respondent was not entitled to make the attachment. This claim petition was allowed on 9th March 1926 and the present suit was filed to set aside the order on this latter claim petition. The trial Court upheld the contention that the order on the second claim petition was correct as no suit had been instituted against the order on the 1st claim within a year. So far as the appellants were concerned the suit against them was dismissed in the trial Court. In the lower appellate Court the learned Judge agreed with the view that the order on the 1st claim petition had become final and therefore the order on the 2nd claim petition was correct except as regards item No. 17 which he said had not been included in the previous claim petition. It may be noted that this point had not been raised either in the trial Court or in the Memorandum of appeal preferred to the lower appellate Court. He held that this item was liable to be attached in satisfaction of the decree obtained against the 1st defendant.
Two questions are raised in this 2nd appeal on behalf of the appellants. The 1st is that the lower appellate Court is wrong in saying that item 17 was not included in the 1st claim petition, Ex. VI. The 2nd argument is that assuming that it was not included nevertheless it is not liable in law to be attached. As I am clear that the appellants must succeed on the 2nd point I need only say as regards the first that it appears to me doubtful that item No. 17 is not included in Ex. VI. Though the boundaries are different there appears to be only one house on the estate and Ex. VI does include a house. If I did not hold that the appellants must succeed on the 2nd point of law I should have been obliged to refer this question back for further finding as to whether certain boundaries given in Ex.VI include item 17 or not. However as I felt no doubt that the appellant must succeed on the 2nd point I need not discuss this matter further. The learned District Judge in paragraph 17 seems not to have recognised the distinction between the liability of property in the hands of sons after partition to be seized in satisfaction of their father's debts with the mode in which the said seizure can be effected. The decision in Kameswaramma v. Venkata Subba Row makes it clear that where there has been a partition subsequent to a decree obtained against the father only, the property which has fallen to the sons in the partition cannot be attached in execution of that decree. In the earlier case Krishnasami Konan v. Ramasami Ayyar (2) it had been held that where the partition was prior to the decree the property in the hands of the sons could not be attached in satisfaction of the decree obtained against the father alone. The Full Bench decisions in Subramania Ayyar v. Sabapathy Aiyar (3) and In re Balusami Ayyar (4) the former of which was quoted by the learned District Judge, approves the decision in 38 Mad. 1120. It is quite one thing to say that in a suit in which the sons have been impleaded the property which has fallen to them in partition may be attached for a pre-partition debt of the father which is binding on them, and another thing to say that where they have not been so impleaded in the suit, property which has fallen to them in partition can be proceeded against. The lower appellate Court does not seem to have grasped this distinction. The learned Counsel for the respondent did not deny the legal position contended for by the learned advocate for the appellants but suggested that the attachment in 1921 which was made before the partition remained in force. But the trial Court has stated that the execution filed by the plaintiff in O.S No. 34 of 1917 in 1920 was subsequently not proceeded with and it was also dismissed. It is clear therefore that there was no subsisting attachment at the time of the partition which took place some time about 1921. Under these circumstances this second appeal must be allowed with costs and the decree of the Court of first instance restored with costs here and the Court below.
N. R. R. Appeal allowed.