JUDGMENT Sulaiman, J.
1. This is an appeal by two judgment-debtors arising out of an execution matter. It appears that Tapeshari Dayal, the father of these objector's had borrowed some money from the plaintiff decree-holder on a promissory note in 1914. On the basis of that promissory note a decree was obtained against him on the 28th of February 1916. Before any property of his was attached Tapeshari Dayal died. On his death he left his father Behari Lal and four sons, the two appellants, and two minor brothers of theirs. In 1919 an application for execution of the decree was made against the sons alone. The two major sons filed objections on the 5th of August 1919 denying their liability to pay the amount due under the decree. Behari Lal also filed separate objections. By an order dated the 2nd of September 1919 the objections of the two sons were disallowed. By a subsequent order dated the 11th of December 1919 the objection of Behari Lal was allowed with respect to the house which had been attached but was disallowed with respect to certain mortgagee rights. Subsequently Behari Lal also died. The decree-holder has now applied for recovery of the balance of the decretal amount by execution against the sons of Tapeshari Dayal by attaching a new item of property. The sons again filed objections urging that the property was not liable to pay the amount. The Court of first instance allowed their objections, but on appeal their objections have been disallowed and execution ordered to proceed; hence this second appeal,
2. It cannot be doubted that under the rulings which were in force under the old Code of Civil Procedure a decree-holder who had obtained a money decree against a member of a joint Hindu family had no remedy in the execution department against the sons of the deceased. Under certain circumstances it was laid down that his remedy was by a separate suit. But I am not aware of any case in which a separate suit was maintained when the deceased left not only sons and grandsons but also father, uncle, brother or nephews. However that may be, the decree-holder had no remedy in the execution department under the old Code. Provisions of Section 53 have now been added which under certain circumstances make the sons of the deceased liable to pay the debt. It is obvious that unless the respondent can come within the four corners of Section 53 which is a new enactment he has no remedy on the execution side. Section 50, sub-Cl. 2 provides that the legal representative of a deceased person is liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of. Section 52 says that the decree is to be executed by attachment and sale of the property of the deceased person. Now ordinarily a member of a joint Hindu family holds joint property in his own right which he acquired at his birth and does not inherit it from the deceased co-parcener in the strict sense of the word. But Section 53 provides that for the purposes of Sections 50 and 52 property in the hands of a son of other descendant which is liable under Hindu law for the payment of debt of a deceased ancestor in respect of which a decree has been passed shall be deemed to be the property of the deceased which has come to the hands of the son or other descendant as his legal representative. It is clear to my mind that in order to see whether a certain person is the legal representative of the deceased with regard to the property sought to be attached the crucial date is the date of the death of the deceased and not the date of attachment of that property. If on the date when the deceased died it cannot be said that a certain property came into the hands of son or other descendant as his legal representatives, Section 52 will not be applicable. In the present case on the date when Tapeshari Dayal died Behari Lal was alive. Behari Lal was not a son or other descendant. He was in fact the father of the deceased. Under the Hindu law there was no pious obligation on Behari Lal to pay his son's debt. The joint family of which Behari Lal was a member was also, therefore, not liable to discharge the debt. The property belonging to the family was, therefore, on the death of Tapeshari Dayal not one which was liable under the Hindu law for the payment of the debt of the deceased. It cannot, therefore, be disputed that between the years 1916 and 1919, when Behari Lal was alive, the decree-holder could not possibly proceed against the joint family property on the ground that it was liable to pay the debt of the deceased.
3. The learned vakil for the respondent has argued before us that at the time when the attachment was being made there were no other members of the family but the sons and possibly grandsons of the deceased Tapeshari Dayal. It is said that, therefore, the property now in the hands of a son or other descendant is liable under the Hindu law for payment of the debt of the deceased father. If the crucial date to be considered is the date of the death of the deceased then this argument obviously has no force. If the property was not liable before, it cannot now become liable merely because the grandfather has died since. I am, therefore, of opinion that the decree holder is not entitled to proceed against this property and treat it as part of the assets of the deceased which has come into the hands of the sons and grandsons.
4. Lastly, it has been urged that the question whether the sons are or are not liable is res judicata by virtue of the previous order dated the 2nd of September 1919. At that time the decrees-holder had sought to attach items of property which were different from the property now sought to be attached. It is true that in their objections the sons did put forward the plea that as members of a joint Hindu family there was no liability to pay the debt of their father. But in the execution application there was no express assertion that the property was separate or joint property. The order of the Court also is not very clear as to whether the property sought to be attached was separate or joint. The Court seems to have held that the sons were always the legal representatives of their deceased father and that execution can always proceed against them. It seems to have decided this question in the abstract as will appear from the following sentence in the order:
Whether a son inherits any property or not, he is still the heir.
5. The question whether the joint property in the hands of the sons is liable or not is a pure question of law. The previous decision really related to the liability of the property that had been then attached When a new item of property is attached it is always open to the judgment-debtors to plead that this new property is not liable to attachment. If in the course of deciding the dispute the Court has to re-consider the question of law decided previously there is no bar to its re-consideration. Section 11, Civil P.C., does not in terms apply to an execution proceeding. But the principle underlying it has been applied to such proceedings in cases where a point has been expressly raised and decided, or in cases where it must be deemed to have been raised and decided by necessary implication. But where the subject-matter is different and the basis of objection is fresh attachment I cannot hold that the previous order in regard to another property is a bar to the point being re-considered. The objection of a judgment-debtor may be allowed with regard to some items and may not succeed with regard to others. A decision that certain property is liable cannot operate as res judicata when the liability of another property is to be considered. The former decision cannot be considered as having decided the question in the abstract irrespective of the property which had been then attached. I therefore hold that the principle of res judicata does not apply.
Mukerji, J.
6. Having regard to the able arguments that have been addressed on both sides in this case I have thought it necessary to say a few words although I am generally in agreement with what has fallen from my learned brother.
7. The points have been discussed. One is whether the appellants as Hindu sons are liable to pay out of the joint family property the debt of their father, and secondly, whether a previous order passed in the execution department dated 2nd September 1919 operates as res judicata.
8. It would be necessary to give the facts, briefly in order to appreciate the points raised. There was a joint Hindu family consisting of the grandfather Behari Lal, the father Tapeshari Dayal and four sons, viz., the appellants Binda Prasad and Baleshwari Prasad and two others, who are not before us. A money decree was obtained by the decree-holders the, respondent, against Tapeshari Dayal. Tapeshari Dayal died before the execution could be taken out against him. Some time in 1919, the decree-holder sought the attachment of two properties, viz., a half-share in a house and a half share in a certain mortgagee interest. In the execution application the decree-holder did not say whether the property was ancestral or whether the property was the separate property of Tapeshari Dayal. He only made the four sons of Tapeshari Dayal party to the execution application. He did not say at all whether Behari Lal, the father of Tapeshari Dayal, was alive or dead or whether the family was joint or separate. In this state of things two objections ware taken, one by the appellants, the adult sons of Tapeshari Dayal, and the other by Behari Lal the father of the deceased judgment-debtor the sons said that they did not inherit any property of Tapeshari Dayal, that the property in their hands was their own property being joint family property and did not constitute any asset of Tapeshari Dayal. The father said in his objection that the family was joint and as the head of the family he had built the house. As to the mortgage, Behari Lal said that he had obtained the mortgage but in the came of his son, It does not appear that the decree-holder filed any answer to these objections. We are left in the dark as to what the case of the decree-holder was. The learned Munsif held that the present appellants, qua sons were liable to pay. As regards Behari Lal's objection the learned Munsif held that the house was liable to be exempted, but the mortgagee interest was liable to be sold. There ended the matter for the time being.
9. Behari Lal died later on and a fresh execution application was instituted, viz., the one out of which the present appeal has arisen. This time the decree-holder sought the attachment of a certain fixed rate holding which is now admitted to be a joint family property of Behari Lal, Tapeshari Dayal, when he was alive, and Tapeshari. Daval's sons.
10. The first question to be considered is whether this property is liable be be attached in execution of Tapeshari Dayal's decree.
11. Section 53, Civil P.C., is by consent the only provision to which we must refer to find the answer. Section 53 lays down who would be regarded as the legal representatives and what property would be regarded as the assets of a deceased judgment-debtor in certain circumstances. But to read and understand Section 53 it would be necessary to read Sections 50 and 52 to which the section refers. Section 50 says that when a judgment-debtor dies the decree may be executed against his legal representative. Then it further says that the legal representative is liable only to the extent of the property of the deceased which has coma into his hands and has not been duly disposed of. In the case of a joint Hindu family, on the death of a joint member, who happens to be a debtor, there are no assets that can be followed; because the deceased's share lapses into the family by the principle of survivorship. There is however a proposition of Hindu law, viz., the family property in the hands of a father is liable to pay his debts, notwithstanding there may be joint sons of the father. On this principle, this High Court allowed only suits to be brought against sons of a deceased judgment-debtor who happened to be members of a joint Hindu family if the property had not been attached in the life time of the debtor. Some High Courts allowed the sons to be brought on the record and the family property to be pursued in their hands. To remove this anomaly Section 53 was enacted. It is laid down therein,that whether there is a liability under the Hindu law on the sons to pay their father's debt, that liability may be followed in execution as well that is the meaning of Section 53 as I understand it. Taking this test we have to see whether the joint family property could be realized on the death of Tapeshari Dayal for the payment of his debts. There can be no doubt that Tapeshari Dayal could not sell the property at the time he died in order to pay off his own debts. He was not the head of the family and the property was not in his hands. The property was in his father's hands. The liability of the sons to pay their father's debt not tainted with immorality is the same whether the liability is enforced through the Court or it is taken advantage of by the father in paying off his antecedent debts by private treaty. In my opinion the test is that the property which the father could sell in his lifetime is the only property that could be pursued by his creditor on his death in the hands of his sons. This must be so for obvious reasons. No case has been cited to us in which it has been established that irrespective of the nature of the property, sons are liable to pay. The sons, if they have any personal property not inherited through the father, are not liable to pay a father's debt. It is therefore only such property as was under the control of the father in his lifetime in order to pay his antecedent debts that can be followed in execution. If this be so it is clear that the property that existed in the family on the death of Tapeshari Dayal was not so liable.
12. It is conceded that for three years, that is to say, during the lifetime of Behari Lal, the property could not be attached. Then the question is whether the death of Behari Lal has made any such difference in the position of the parties as make to the property, which was not attachable before, attachable now. The sons may very well say, and they do say, that they got the property not from their father but from their grandfather. As a matter of Hindu law the grandsons get their property in their own right neither through their father nor through their grandfather. But in order to adjust the conflicting rights, viz., of the creditor and of the son it is said that the property received by sons through their father is liable. In this case the property in question was received by the sons through their grandfather and not through the father. In this view we have to look to the date of the death of Tapeshari Dayal in order to see what property was liable to pay his debts. The result would be that the property now in question cannot be sold in execution.
13. On the question of res judicata I have already indicated that the decree-holder did not make any statement whatsoever as to the nature of the property. Ha did not say whether the property was self-acquired property or separate property of Tapeshari Dayal. There was therefore no issue as between the parties. The Court chose to decide the appellants' objection on a point of law and it did decide it. But that would not show what was the contention of the decree-holder on the question of fact involved, viz,, as to the nature of the property. This will be one reason for holding that the previous order does not operate as res judicata.
14. Secondly, Section 53, Civil P.C., shows that it is not with respect to every property that a Hindu son can be said to be the legal representative of his deceased joint father. A Hindu son may be a legal representative with respect to a certain property and he may not be a legal representative with respect to another property. If this be so, it cannot be said that because the appellants were held to be legal representatives of the deceased judgment-debtor qua the properties attached before, they are also the legal representatives of the deceased qua the property now in question, viz.. the fixed rate tenancy. In this view also the argument based on res judicata cannot hold water. In my opinion also the appeal must be allowed.
15. The appeal is accordingly allowed and the decree of the lower appellate Court is set aside and that of the Court of first instance restored with costs throughout.