Madras High Court
Ramakrishna vs Namasivaya And Two Ors. on 29 January, 1884
Equivalent citations: (1883)ILR 7MAD295
JUDGMENT Charles A. Turner, Kt., C.J.
1. We have considered the arguments in this case and are of opinion that the suit is maintainable. It is not brought on the same cause of action as the Suit O.S. 575 of 1880, in which a decree was obtained against the father and brother of the present defendants. The question as to the right of the decree-holder to sell the interests of all members of the family in the ancestral property, which was the subject of the mortgage, was not decided in that suit. If the objection of the sons had been overruled, it would have been open to them to have contested the order by regular suit. Here, where the order has been unfavourable to the decree-holder, it is equally competent to him to bring a regular suit to contest the order.
2. In this conclusion we find ourselves supported by a recent ruling of the High Court of Calcutta in Sitanath Koer v. Land Mortgage Bank of India I.L.R. 9 Cal. 888.
3. It has been found that the father's debt was not contracted for immoral purposes, so that the interests of the sons, as well as of the father, are liable to sale in execution of the decree, unless the sons redeem the property remaining unsold.
4. The decree of the Subordinate Judge is reversed and that of the Munsif is restored, but, under the circumstances, without costs.