B. K. Mukherjea, J. - (1.) This appeal is on behalf of the Judgment debtor in a proceeding for execution of a money decree and it is directed against the Judgment of a Letters Patent Bench of the Punjab High Court dated 18-5-1949, by which the learned Judges affirmed in appeal, a decision of a single Judge of that Court dated 29-10-1946. The original order against which the appeal was taken to the High Court was made by the Senior Subordinate Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections preferred by the appellants under S. 47. Civil P. C.
(2.) To appreciate the contentions that have been raised in this appeal, it would be necessary to give a short narrative of the material events in their chronological order. On 30-9-1925 Baldev Das, the father of the appellants, who was, at that time the manager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour of Mt. Naraini, the original respondent 1, and another person named Talok Chand, by which certain movable properties belonging to the joint family were hypothecated to secure a loan of Rs. 16,000. On 16-4-1928 the appellants along with a minor brother of theirs named Sumer Chand filed a suit - being Suit No. 23 of 1923 - in the Court of the Subordinate Judge of Shahjahanpur against their father Baldev Das for partition of the joint family properties. The suit culminated in a final decree for partition on 20 7-1928 and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.On 29-9-1934 Mt. Naraini filed a suit in the Court of the Senior Subordinate Judge, Ambala, against Baldev Das for recovery of a sum of Rs.12,500 only on the basis of the mortgage bond referred to above. It was stated in the plaint that the money was borrowed by the defendant as manager of a joint Hindu family and the plaintiff prayed for a decree against the mortgaged property as well as against the joint family. On 18 12 1934 the appellants made an application before the Subordinate Judge under O.1, R. 10 and O. 34 R. 1. Civil P. C. praying that they might be added as parties defendants to the suit and he points in issue arising therein might be decided in their presence. It was asserted in the petition that Baldev Das was not the manager of a joint family and that the family properties had been partitioned by a decree of the Court, as a result of which the properties alleged to be the subject-matter of the mortgage were allotted to the share of the petitioners.In reply to this petition, the plaintiff's counsel stated in Court 7-2-1935 that his client would give up the claim for a mortgage decree against the properties in suit and would be satisfied only with a money decree against Baldev Das personally. The plaint was amended accordingly, deleting all reference to the joint family and abandoning the claim against the mortgaged property. Upon this the appellants withdrew their application for being made parties to the suit and reserved their right to take proper legal action if and when necessary. On 17-4-1935, Baldav Das died and on 2nd September following the appellants as well as their mother, who figures as respondent 5 in this appeal, were brought on the record as legal representatives of Baldev Das. On 9-10-1935 the appellants filed a written statement in which a number of pleas were taken in answer to the plaintiff's claim and it was asserted in para 10 of the written statement that Baldev Das dealt in Badra or speculative transactions and if any money was due to the plaintiff at all in connection with such transactions the debt was illegal and immoral and not binding on the family property.On the same day the Court recorded an order to the effect that as the plaintiff had given up her claim for a mortgage decree, the legal representatives of the deceased could not, be allowed to raise pleas relating to the validity or otherwise of the mortgage. On 20-11-1935 the parties arrived at a compromise and on the basis of the same, a simple money decree was passed in favour of the plaintiff for the full amount claimed in the suit together with half costs amounting to Rs. 425 annas odd against the estates of Baldev Das in the hands of his legal representatives After certain attempts at execution of this decree which did not prove successful, the present application for execution was filed by the decree-holder on 13-3-1945 in the Court of the Senior Subordinate Judge, Ambala and in accordance with the prayer contained therein, the Court directed the attachment of certain immovable properties consisting of a number of shops in possession of the appellants and situated at a place called Abdullapur.On 23-4-1945, the appellants filed objections under S. 47. Civil P. C., and they opposed the attachment of the properties substantially on the ground that these properties did not belong to Baldev Das but were the separate and exclusive properties of the objectors which they obtained on partition with their father long before the decree was passed. It was asserted that these properties could not be made liable for the satisfaction of the decretal dues which had to be realised under the terms of the decree itself from the estate left by Baldev Das.
(3.) After hearing the parties and the evidence adduced by them the Subordinate Judge came to the conclusion that there was in fact a partition between Baldev Das and his sons in the year 1928 and as a result of the same, the properties, which were attached at the instance of the decree holder, were allotted to the share of the sons. The decree sought to be executed was obtained after the partition, but it was in respect of a debt which was contracted by the father prior to it. It was held in these circumstances that the separate share of the sons which they obtained on partition was liable under the Hindu Law for the prepartition debt of their father if it was not immoral and under S. 53, Civil P. C., the decree-holder was entitled to execute the decree against such properties. As no point was raised by the objectors in their petition alleging that the debt covered by the decree was tainted with immorality, the objections under S. 47, Civil P. C., were dismissed. The objectors thereupon took an appeal to the High Court of East Punjab which was heard by Rahman J. sitting singly. The learned Judge dismissed the appeal and affirmed the decision of the Subordinate Judge. A further appeal taken to a Division Bench under the Letters Patent was also dismissed and it is the propriety of the Judgment of the Letters Patent Bench that has been challenged before us in this appeal.;