Decided on March 20,1953



Ramaswami, J. - (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 2011- 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 6-91941 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.;

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