The Judgment of the Court was delivered by
Subrahmania Ayyar and Benson, JJ.:— We are unable to agree with the District Munsif that the maintenance was not made a charge upon the house in dispute. It is admittedly the Palayoor house referred to in the schedule to the decree and there is no other house answering to that description. It is scarcely necessary to say that the fact that the decree does not specify the property by metes and founds does not affect the question as to the creation of a charge, if the intention to create the charge is clear and the property can be otherwise identified.
It was, however, contended that the decree should not be construed as a decree for sale, but merely as declaratory of the existence of a charge. The date of the decree, however, was prior to the Transfer of Property Act and having regard to the language then commonly used in mortgage decrees we must hold that the objection is not well founded.
The respondent as the purchaser of the plaintiff's interest in the property was clearly her representative to the extent of her interest within the meaning of section 244 of the Civil Procedure Code (Paramananaa Das v. Mahabeer Dossji; Ishan Chunder Sirkar v. Beni Madhub Sirkar(2)).
An appeal therefore lay.
We must set aside the orders of the Courts below and direct that the execution petition be proceeded with by the District Munsif according to law. Costs in this and in the lower Appellate Court will abide and follow the event.
First defendant in the suit having died his son. The respondent in Civil Miscellaneous Second Appeal No. 20 of 1900, who was a minor at the date of the decree and who had been added as fifth defendant since his father's death, applied, in April 1899, that the house at Thiruchithambal am might be released from attachment on the ground that he had acquired it by right of survivorship and held possession of it as his own. He contended that he was no answerable for the decree which plaintiff had obtained against his father and under having been added merely as his father's legal representative. He said no assets from his father's estate had come to his hands and contended that the house was his own and not liable to plaintiff's maintenance or to attachment under her decree. He asked that it might be released. Plaintiff opposed this application, alleging that her suit had been against fifth defendant's father as the head and managing member of the family. She relied on her decree as charging the house with her maintenance and contended that it should not he released from attachment. The Munsif passed the following order Petitioner's Vakil cites Multia v. Virammal and contends that maintenance decreed to plaintiff against the petitioner's deceased father cannot be regarded as a charge upon the joint estate or the decree be treated as a decree against the petitioner. The son and heir of the judgment-debtor. The decree is not expressed to be a decree against the head or representative of the joint family. In the circumstances the family estate cannot be held liable Plaintiff's remedy lies in a regular suit against the petitioner. Petition allowed. The property will be released from attachment.”
Plaintiff appealed to the District Judge who held as follows:—
“I think the order appealed against is right. It is not clear that the house, which was attached and the release of which from attachment has been ordered by the District Munsif, is the house referred to in the decree. The family has, it is said, more than one thatched house in the village. The decision of the Madras High Court quoted by the District Munsif and also those in Bheri Dorayya v. Maddipatu Ramayya and Venkatarama v. Senthivelu(3) seem to show that the decree against the father cannot be executed against the son and the property in his hands.”
He dismissed the appeal.
Against that order of dismissal, plaintiff preferred the appeal filed as appeal against Appellate Order No. 20 of 1900.
Sivasami Ayyar for appellant.
T.S Krishna Ayyar for respondent (defendant No. 5).
The case first came on for hearing before Subranmania Ayyar and Benson, JJ., who passed the following
If the house sought to be sold is property charged by the decree with maintenance. The property ??? sold in execution of the decree even though the respondent was not made a party to the decree, since there can be no contention that the debt was either illegal or immoral, and the decree is not merely in personal decree against the father alone as in Muttia v. Virammal, but a decree against the representatives of the family directly creating a charge. The concluding part of the judgment in Muttia v. Virmmal is an authority for holding that such a decree can be executed against the sons of the defendants, though not actually made parties.
If, however. The property was not charged by the decree. The son, under the same authority, may be entitled to object to property taken by him by right of survivorship being proceeded against in execution.
The District Judge has not definitely found whether the property attached was property comprised in the decree. We must therefore ask for finding on this point. Evidence may he taken on both sides.
In compliance with the above order. The District Judge submitted the following.
Finding.—The decree charges (besides other property) “the tiled house in the village of Thiruchithambalam which is the ancestral property of the defendants' family.” A tiled house in Thiruehithambalam was attached lay the decree-holder (appellant) in execution of her decree; and two witnesses have been called by her who say that this house was in existence when the decree was passed, and that the defendants' family had then, and have now only this one house in Thiruohithambalain. There is no evidence the other way; and the respondent's pleader says that he has not received any instructions from his client. I find on this evidence that the house which the appellant attached and which the District Munsif released from attachment, is property comprised in the decree.
The appeal came on for final hearing, after the return of the above finding, before the Court constituted as above, when their Lordships delivered the following.
Judgement.— No objection is taken to the finding. We accept it and reverse the orders of the Courts below and direct the execution petition he disposed of according to law. The appellant will have her costs throughout.