1. We are invited in this Rule to set aside an order made by the Court below under Order 21 Rule 100 of the Code of 1908. The circumstances under which the order in question was made are not disputed and may be briefly narrated. On the 25th March 1908 one Dinanath Das obtained an ex parte decree against Kali Prosad Das for a sum of over Rs. 6,000. On the 26th February 1908 during the pendency of the suit, he had obtained an order for attachment of the immovable properties of the defendant and on the 15th April 1908 he applied for execution of his decree. The properties were reattached on the 1st May following. Before execution could proceed further, the judgment-debtor applied under Section 108 of the Code of 1882 to set aside the ex parte decree. This application was refused on the 27th July. Meanwhile on the 23rd June 1908 the infant son of the judgment-debtor, Madan Mohan Das, through his mother and next friend, Saraswati Dassi, preferred a claim to the attached property on the allegation that the property was ancestral, and belonged to a family governed by the Mitakshara law, that he was entitled to a half share therein, and that consequently the decree-holder was not entitled to proceed in execution against the entire property as the property of his judgment-debtor. On the 4th July 1908 the Court rejected this application under the proviso to Section 278 of the Code of 1882, on the ground that the claim had been designedly and unnecessarily delayed. On the 10th July 1908 Madan Mohan commenced an action for a permanent injunction to restrain the decree-holder from proceeding to sell the entire property. It was alleged in this plaint that, the family was governed by the Mitakshara law, that the property was ancestral and did not belong exclusively to Kali Prosad, that the plaintiff was interested in a half share, that the debts contracted by his father were for immoral and illegal purposes, and that consequently the decree for money could not be executed against the entire property, A declaration was, therefore, sought that the property was not liable to be sold and a prayer was made not only for a permanent injunction but also for injunction pedente lite. The decree-holder defended the suit on the ground that the family was not governed by the Mitakshara law, that the property was not ancestral, that the plaintiff had no interest therein, that the debts were contracted for necessary family purposes by Kali Prosad, the head of the joint family; and that the decree-holder was consequently entitled to attach and sell the entire property in execution of his decree. On these pleadings, eleven issues were raised of which the sixth was as follows: "Whether the debts contracted by the pro forma defendant No. 2 (the father) were for immoral purposes"; the eighth issue was in these terms: "Whether the pro forma defendant No. 2 was the kurta of a joint Hindu family and whether he contracted these debts as such for the benefit of the family." The ninth issue raised the question whether the minor plaintiff was legally liable for the debts contracted by his father. During the pendency of this suit, an application was made for a temporary injunction to stay the execution of the decree. This was refused by the Subordinate Judge on the 4th September, 1908 and on appeal his order was affirmed by the District Judge on the 19th September. On the 22nd September, the attached property was sold by auction and was purchased by Sankar Nath Pandit, the petitioner before this Court, for a sum of Rs. 5,500. On the 30th October, the judgment-debtor applied to have the sale set aside on the ground of fraud and material irregularity under Sections 244 and 311 of the Code of 1882. This application, however, was not prosecuted, and on the 13th February 1909 it was dismissed for default. Meanwhile on the 15th November 1908, the suit brought by the son Madan Mohan for declaration that he was entitled to a half share in the property which was not liable to be sold in execution of the decree against his father, came on for hearing, and as the plaintiff was not in a position to proceed with the suit, it was dismissed under Section 102. On the 9th December 1908, an application was made under Sections 103 and 623 to set aside the order of dismissal and to revive that suit. On the 17th April 1909, this application was dismissed on the ground that Section 623 had no application as pointed out by this Court in the case of Koilash Mondol v. Nabadwip Chandra Kar 2 C.W.N. 318,and that, treated as an application under Section 103, it was obviously barred by limitation. In the interval, the sale had been confirmed, and on the 13th February 1909 the sale certificate had been issued to the auction-purchaser who obtained delivery of possession on the 11th March. On the 15th March Madan Mohan made an application under Order 21, Rule 100 on the ground, that he had been illegally dispossessed by the purchaser. On the 15th May the Subordinate Judge allowed this application and directed the applicant to be put into possession of a half share of the property on the ground that he was in possession of such share, on his own account, when the purchaser dispossessed him. The legality of this order, is in controversy in the Rule before us.
2. On behalf of the auction-purchaser, it has been argued that the order was without jurisdiction, first because, as pointed out in Cooverji Hirji v. Dewsey Bhoja 17 B. 718, no member of a joint Mitakshara family can predicate that he is in possession on his own account of a specific share of any portion of the joint family property; and, secondly, because in view of the regular suit, brought by the son for declaration of his title, it was not competent to the Court to make an order under Order 21, Rule 101. On behalf of the son, the order of the Court below has been sought to be supported on the ground that as the claim case was not tried on the merits, it was not obligatory upon him to bring a regular suit, that the dismissal of the regular suit under Section 102 of the Code of 1908 does not operate as res judicata, and that it was quite open to the execution Court to determine that the son was in possession on his own account of a share of the joint family property and to restore him to joint possession along with the auction-purchaser. In support of this view, reliance has been placed upon the cases of Kallapa v. Venkatesh Vinayak 2 B. 676. Dugappa Sheti v. Venkatramanya 5 B. 493 and Patil Hari Premji v. Hakam Chand 10 B. 363. After a careful examination of the arguments addressed to us on both sides, we are of opinion that the order made by the Court below was without jurisdiction and must be discharged.
3. It is manifest that the order of the Subordinate Judge, in so far as it entitles the petitioner to be placed in possession of a half share of the property, is entirely erroneous. The case of Cooverji v. Dewsey 17 B. 718 is an authority for the proposition that no member of a joint Mitakashara family can affirm that he is in possession of any particular portion or share of the joint property on his own account. His possession is the possession of the family, and consequently he is not entitled to an order which restores him to possession of a specified-share on the ground that he has been in possession of that share on his own account. Indeed the learned Vakil for the opposite party has not seriously contended the position that the son is not entitled to be restored to possession of any specific share, and he has suggested that the order of the Court below may be amended so as to give the son joint possession of an undefined share with the auction-purchaser of the property sold. It is not necessary to consider whether this can be done in view of the principles indicated in the case of Cooverji v. Dewsey 17 B. 718 such an order is apparently contemplated in the case of Govinda Nair v. Kesava 3 M. 81 which is treated as irreconcilable with Cooverji v. Dewsey 17 B. 718 in Mancharam v. Fakir Chand 25 B. 478 at p. 492. It is needless, however, to pursue this paint further, because as we shall presently show, in the events which have happened, the opposite party is not entitled to an order in his favour under Order 21, Rule 100.
4. It may be conceded that when a claim preferred under Section 278 of the Code of 1882 has been dismissed without adjudcation, it is not obligatory on the claimant to bring a suit for a declaration, under Section 283 of the Code of Civil Procedure, within one year of the date of the dismissal of the claim Sardhari Lal v. Ambika Pershad 15 I.A. 123 : 15 C. 521 and Kunj Behari Lal v. Kandh Prashad Narain Singh 6 C.L.J. 362. At the same time, there is nothing to prevent a claimant from instituting a suit for declaration of title and for an injunction against the decree-holder. If such a suit is brought and fails the claimant cannot subsequently take up the position that the suit was unnecessary and that its dismissal does not affect him. Indeed, it is not necessary for a person whose property has been attached in execution of a decree against another, to prefer a claim at all under the Code. He need not have recourse to the summary remedy. He may at once institute a suit for declaration of title and for an injunction against the decree-holder to restrain him from proceeding with the execution. If he does so, he is undoubtedly bound by the result of the litigation commenced by him. In the case before us, the son did institute a suit for declaration of title. He raised the question of the nature of the debt contracted by his father, and expressly asserted that those debts were of an illegal and immoral character and could not be realised out of his interest in the ancestral property. Issues were joined on this point. But there was no adjudication by reason of the failure of the plaintiff to prosecute his suit. What then is the effect of this dismissal? No doubt, as pointed out by their Lordships of the Judicial Committee in Chand Kaur v. Partab Singh 16 C. 98 : 15 I.A. 156, the dismissal of a suit under Section 102 of the Code of 1882 is not intended to operate in favour of the defendant as res judicata. But when read with Section 103, it precludes a fresh suit in respect of the same cause of action, referring, irrespectively of the defence or the relief prayed, entirely to the grounds or alleged media on which the plaintiff asked the Court to decide in his favour. It is not necessary for our present purposes to consider whether another action would be maintainable by the son against the auction-purchaser to enforce his alleged claim to the property which has been sold. It is sufficient to say that under Section 103 the son is not entitled to bring a fresh suit in respect of the cause of action which he alleged in the suit for declaration of title and for injunction to prevent execution. In the events which have happened, as against the decree-holder the son is consequently not entitled to allege that his interest in the property, if any, is not liable to be sold in execution of the decree against the father. The decree-holder, therefore, was quite competent to proceed with execution of his decree and bring the entire property to sale. It is manifest that as against the auction-purchaser the son is no more entitled to contend that the entire property was not liable to be sold than as against the decree-holder. The view we take is amply supported by the case of Cooverji v. Dewsey 17 B. 718. Here, as in that case, in execution of a decree for money against the father, the decree-holder attached the entire family property. He undoubtedly intended to proceed against the whole property and not merely against the right, title and interest of the father. That this was the scope of the execution proceedings is manifest from the claim preferred and the subsequent regular suit instituted by the son. That it was competent to the decree-holder to proceed against the entire property inclusive of the interest of the son cannot be questioned in view of the decision in Muddun Thakoor v. Kantoolall 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56, Nanomi, Babuasin v. Modhun Mohun 13 I.A. 1 : 13 C. 21 and Jahur Mal v. Eknath 24 B. 343 : 3 B.L.R. 322. It was also open to the son to establish that the debt was not binding upon him as it was of an immoral nature. The son commenced an action for this purpose and allowed it to be dismissed under Section 102. Under these circumstances, it is difficult to appreciate how in the same proceeding the son can be permitted at a subsequent stage to re-agitate the same question and to nullify the previous orders. The cases of Kallapa v. Venkatesh Vinayak 2 B. 676, Dugappa Sheti v. Kishnapa Sheti 5 B. 493 and Patil Hari v. Hukam Chand 10 B. 363, are all distinguishable on the ground that there the debt was contracted by a member of the joint Mitakshara family and the persons whose interests were sought to be bound thereby were not his sons but his coparceners. The substance of the matter, therefore, is that here the creditor obtained a decree against the father for a debt which up to the present time has not been established to be either immoral or illegal. The creditor was entitled to enforce his judgment-debt against the ancestral property to the extent of the whole interest therein of the father and the son. In the execution proceeding which he initiated, it is unquestionable that he did so. The son put forward a claim to get his interest released but did not prosecute it. The son subsequently commenced a regular suit which shared the same fate. The auction-purchaser has purchased what the decree-holder intended to sell, namely, the whole estate of the joint family. He is consequently entitled to possession of what he has bought, because he bought the whole of the rights of the family. The son was entitled to an investigation of the nature of the debt in a suit of his own That suit has been brought and through his failure to prosecute that suit, he has not established that the debt was immoral and could not justify the sale. Under these circumstances, it is difficult to appreciate how he can now be allowed to contend that he was in possession of a share of the property in his own right and is entitled to be restored to such possession as against the auction-purchaser.
5. The result, therefore, is that the Rule must be made absolute, and the order of the Court below discharged with costs. We assess the hearing fee in this Court at five gold mohurs.