JUDGMENT Abdur Rahman, J. 1. This is a Plaintiffs appeal. It arises out of a suit for recovery of possession of several items of property sold in execution of a decree passed on the basis of a mortgage deed executed by the Plaintiffs father, Appanna, and their cousin, the first Defendant, in favour of the second Defendant. 2. The facts which have contributed to the present litigation may be briefly stated. It appears that the second Defendant claimed to have purchased the Jaghir of Mugalapalli in a court-auction and to have obtained possession of the same in 1904. Relying on his purchase he called upon Appanna and the first Defendant to maintain the Mugalapalli tank in good condition and to effect necessary repairs, a service which they were bound to render in terms of a dasabandham inam granted to their ancestors. This, According to the second Defendant, they had failed to perform and the inam was consequently resumed by the second Defendant in 1907 and a ryotwari patta issued. Having done this, the second Defendant instituted several suits for the recovery of rent in revenue Courts and obtained decrees. In consideration of these decrees, which amounted to Rs. 600 in 1915, and of a further sum of Rs. 200 stated to have been advanced to Appanna and the first Defendant, a mortgage deed comprising lands granted to Appannas ancestors by way of dasabandham inam and some other ancestral properties was executed by them in favour of the second Defendant. This was followed by a suit (Original Suit No. 38 of 1916; Original Suit No. 21 of 1919) instituted by Appanna and the first Defendant praying for a declaration to the effect that the dasabandham inam lands were held by them free of rent and their resumption by the second Defendant was ineffectual. They had also asked for a declaration that the decrees for rent passed by the revenue Courts were invalid on account of fraud. The Subordinate Judge of Salem who tried the suit decreed the claim on 20th December 1920 (Exhibit C) to a large extent. He held that the second Defendant was not a jaghirdar and was not entitled to resume the dasabandham inam granted to the Plaintiffs ancestors. The decrees of the revenue Courts were, however, not found to have been obtained by fraud and were not declared to be invalid. He held that the second Defendant was not a jaghirdar and was not entitled to resume the dasabandham inam granted to the Plaintiffs ancestors. The decrees of the revenue Courts were, however, not found to have been obtained by fraud and were not declared to be invalid. Ignoring the decree passed by the Subordinate Judge of Salem, the second Defendant instituted a suit for sale on the basis of his mortgage (Original Suit No. 101 of 1922) against Appanna and the first Defendant but they failed to appear and contest it. An ex parte preliminary decree was therefore passed. Appanna died shortly after and his sons, the present Plaintiffs, were brought on the record as his legal representatives. They tried to attack the mortgage deed and question the alienability of the inam lands in those proceedings but were not permitted so to do. A final decree was consequently passed in terms of the preliminary decree and the properties covered by the mortgage deed were brought to sale in execution in 1927 and purchased by the second Defendant himself. He succeeded in obtaining possession of the same in September 1929. 3. Having been thus dispossessed, the Plaintiffs instituted the present suit. Two schedules were attached to the plaint. Schedule A comprised properties which were claimed to have been granted as dasabandham inam and Schedule B contained properties which were alleged to be ancestral. The alienation of these properties effected by their father and cousin the first Defendant, by way of mortgage in 1915 and their subsequent sale were challenged in the plaint as void and inoperative. The mortgage deed executed by Appanna and the first Defendant was also attacked as invalid for want of consideration. The validity of the mortgage deed was also impugned on the ground of coercion as it was alleged to have been secured at the time when Appanna and the first Defendant were under arrest in consequence of a warrant issued at the instance of the second Defendant in execution of his decree passed by the revenue Court. The second Defendant denied these allegations and contended that the mortgage deed was for consideration, valid and binding and that the Plaintiffs, who were represented by their father and impleaded in the mortgage suit, were not entitled to raise the question of its validity or that of the sale. The second Defendant denied these allegations and contended that the mortgage deed was for consideration, valid and binding and that the Plaintiffs, who were represented by their father and impleaded in the mortgage suit, were not entitled to raise the question of its validity or that of the sale. It was also alleged that the suit was barred by limitation. 4. The Subordinate Judge, in a judgment which is very perfunctory and has been of no use to us in deciding this appeal, held the mortgage to be for consideration and the decree in Original Suit No. 101 of 1922 to be binding on the present Plaintiffs. The alienation of the inam lands comprised in Schedule A was not held to be void and that of the properties described in Schedule B, although found to be ancestral, was held to be justified and binding. The suit was also found to be barred by Article 12 of the Limitation Act. It was therefore dismissed. The second Plaintiff appeals. 5. The first question which has to be determined in this appeal is whether the mortgage of 1915 and the sale in execution axe binding on the Plaintiffs, being in respect of properties which were alienable in character and for a valid consideration. As stated above, the mortgaged properties consisted of inam lands and ancestral property. So far as the inam lands are concerned, the question depends on the nature of the grant under which they were granted to the Plaintiffs ancestors. If the grant were made for public service or for purposes of public utility, it could not have been assigned for the simple reason that its assignment would defeat the object for which it was granted. The lands comprised in Schedule A were, as the certified copy of the inam title deed (Exhibit A) would show, granted to the Plaintiffs ancestors by way of dasabandham inam and the burden of keeping the tank, apparently an irrigation source, in repair was transferred to the inamdar. That an alienation of such an inam is against public policy and void admits of no doubt and is concluded by authority; see Ramakrishnamma v. Venkatasubbiah I.L.R. (1934) Mad. 389, Ramanathan Chettiar v. Kalidasa Kavandan (1936) 71 M.L.J. 398 , Anjaneyalu v. Sri Venugopala Rice Mill Ltd. I.L.R. (1922) Mad. 620 and Swami v. Satheyya I.L.R. (1935) Mad. 354 (F.B.). 6. 389, Ramanathan Chettiar v. Kalidasa Kavandan (1936) 71 M.L.J. 398 , Anjaneyalu v. Sri Venugopala Rice Mill Ltd. I.L.R. (1922) Mad. 620 and Swami v. Satheyya I.L.R. (1935) Mad. 354 (F.B.). 6. The learned Subordinate Judge has overruled the Plaintiffs contention in a few words by saying that, since the alienation of a village inam was valid during the lifetime of the alienors, it could not be set aside at the Plaintiffs instance. How he could have held it to be so, when he had admitted in the preceding sentence of his judgment that an inam of this kind is inalienable, is incomprehensible. Moreover, he lost sight of the fact that the mortgage was created by the Plaintiffs father who had died and not by the Plaintiffs themselves. 7. In view of the decided cases Mr. Ramakrishna Ayyar, learned Counsel for the Respondents, was unable to support the lower Courts judgment in this respect. We must therefore hold that both the mortgage of the properties described in Schedule A and their sale in execution of the decree were nullities and must be disregarded. 8. This was not however the only objection raised against the alienations. The binding character of the mortgage deed was also questioned on behalf of the Plaintiffs on the ground that it was not supported by any legal consideration. It might have been unnecessary to go into this question if all the properties comprised in the mortgage deed were service tenure lands. But the decision of this question has become necessary as the properties mentioned in the "B" schedule were claimed by the Plaintiffs and have been found by the lower Court to be ancestral. This finding was not challenged before us by the learned Counsel for the Respondents. We must therefore now consider the question whether there was a legal consideration for the mortgage deed executed by the Plaintiffs father and the first Defendant. The consideration for this mortgage was said to consist of a sum of Rs. 600 which was alleged to have been due to the second Defendant on account of certain rents due to him after the inam rights were attempted to be resumed by him. The consideration for this mortgage was said to consist of a sum of Rs. 600 which was alleged to have been due to the second Defendant on account of certain rents due to him after the inam rights were attempted to be resumed by him. It is true that the second Defendant had secured decrees in revenue Courts for this amount but, in view of the finding in Original Suit No. 38 of 1916 that the lands were held by the Plaintiffs father and the first Defendant as rent-free and the second Defendant was not legally entitled to resume them or charge any rent therefor, it must be held that the same could not have formed a valid consideration for the mortgage deed. Let us now examine if the balance of Rs. 200 was paid to the mortgagors at the time when this mortgage deed was executed. The statement made by D.W. 1, who happens to be a grandson of the second Defendant, makes it clear that this sum of Rs. 200 was not advanced to Appanna and the first Defendant in cash but was taken into account, to quote his words, "for effecting repairs to the tank and for expenses of the criminal case". There is no evidence on the record that any money was spent by or on behalf of the second Defendant in effecting repairs to the tank or that he was entitled to do soon behalf of the mortgagors. Nor do the mortgagors appear to be liable for the expenses of any criminal case filed against them by the second Defendant. The only criminal case in regard to which a copy has been produced on behalf of the second Defendant (Exhibit II) was filed in 1907. The suggestion apparently is that the expenses incurred by the second Defendant in filing and prosecuting this complaint were recovered in this manner from the mortgagors. But were they liable to pay them? Even if the facts were otherwise, the second Defendant, although he might have been held entitled to recover the value of fifty coconuts, which were alleged to have been stolen by the first Defendant, in tort from him, could not be justified in recovering the costs incurred for filing the complaint and conducting the prosecution which resulted in the first Defendants conviction. But, when the facts of this case as disclosed by the judgment (Exhibit II) were looked into, it transpired that these coconuts were growing on the inam land which the second Defendant was trying to resume and which Appanna and the first Defendant were trying to resist. It was found, as stated above, in Original Suit No. 38 of 1916 that the second Defendants action was wholly unjustified. In view of that finding it is impossible to hold that these expenses could have been either legally or justly recovered from Appanna who was no party to the complaint or from the first Defendant who was. 9. It is impossible for us to overlook the circumstance that shortly before the execution of the mortgage deed a warrant for the first Defendants arrest was issued by the Sub-Collector, Hosur, in execution of the decree for rent passed in second Defendants favour (Exhibit B). Looking at the variety of ways in which Appanna and the first Defendant were being harassed by the second Defendant, who was apparently a man of influence and means, it is not surprising to find that he did succeed in getting the mortgage deed executed in his favour from these helpless persons. In the circumstances it is unnecessary to give a finding whether the mortgage deed was vitiated by coercion; but we cannot but hold that there was absolutely no consideration for the mortgage deed executed by Appanna and the first Defendant and the same must be held to be not binding on the present Plaintiffs. 10. The question then is whether the decree passed on the basis of the mortgage is binding on the Plaintiffs. They were not impleaded when the suit was instituted and were brought on the record as legal representatives of their father after the preliminary decree had been passed against him. They tried to raise the questions regarding the alienability of the property mortgaged and the binding nature of the debt but were not permitted to do so. This course was adopted by the Court on account of the provisions contained in Order XXII, Rule 4(2), Code of Civil Procedure. They tried to raise the questions regarding the alienability of the property mortgaged and the binding nature of the debt but were not permitted to do so. This course was adopted by the Court on account of the provisions contained in Order XXII, Rule 4(2), Code of Civil Procedure. It may be that for certain purposes the suit might be deemed to have been pending and not disposed of until a final decree was passed but there is no doubt that the whole of the trial had come to an end and the points which the present Plaintiffs wished to raise then could not have been gone into at that stage. Moreover, the defences which they wished to raise were not such as to be called appropriate to their character as Appannas legal representatives. They could not have assailed the decree which had been passed against their father during his lifetime. It would therefore follow that the decree cannot be held to be binding on them in their individual capacity in which the present suit was brought. 11. It has been contended, however, that, although it might have been possible for the Plaintiffs to institute a suit on account of the transaction being immoral or illegal (a proposition which the learned Counsel for the Respondents appeared to contest later and which will have to be examined subsequently), the mortgage cannot be impugned by the Plaintiffs for want of consideration particularly when they had been impleaded before the final decree was passed. We have already tried to show that the fact of the Plaintiffs having been impleaded after the preliminary decree had been passed could not have debarred them from raising it in a separate suit. But the argument is that, although the father might have been debarred from raising the question of his immorality or illegality, yet he was not debarred from raising the question of the want of consideration and, as a decree, either ex parte or otherwise, was passed against Appanna, it was no longer open to his sons to contend that there was no consideration for the mortgage deed. Had the decree not been passed against the father who occupied a special position as the kartha of a joint Hindu family with regard to his sons, the answer would have been simple enough. Had the decree not been passed against the father who occupied a special position as the kartha of a joint Hindu family with regard to his sons, the answer would have been simple enough. But the contention is that a Hindu father represents his sons even when they have not been impleaded so far as the factum of the debt is concerned and that they cannot dispute the existence of the debt after the decree had been passed against their father. The contention is in our opinion unsound and must be repelled. It assumes in the first instance that the father was sued in a representative capacity. We do not see any reason why the father should be held to have represented his sons in any greater degree in regard to the factum of the debt than he could have done in case the debt had been attacked as immoral or illegal. We are not concerned here with what the father could or could not have done, but with how far the sons are to be bound by his action or inaction. The question is not how far was the father liable for the debts which he might have incurred or acknowledged, but the question is how far are his sons liable? They cannot be held to be so unless it is shown that the father was being sued in a representative capacity. In the absence of an express declaration that he was being sued in that capacity, their liability can only be established by proving that a debt existed in point of fact. The sons, it must be remembered, were no parties to the action. If the sons are not allowed to question the existence of the debt in a subsequent suit how and when would it be possible for them to contend that the debt was never actually incurred by their father? We are not concerned here with the question of onus of proof but with the question whether a plea denying the existence of a debt is available to the sons. It is only after the debt has been proved to exist and found not to have been immoral or illegal that the father could be said to have been sued in a representative capacity. It is only after the debt has been proved to exist and found not to have been immoral or illegal that the father could be said to have been sued in a representative capacity. As long as these questions remain undecided, in spite of the challenge by the sons, it cannot be said that the father had been sued in a representative capacity. It must not be forgotten that the sons are not being proceeded against as heirs of their father but their own share of the property which belonged to them even when their father was alive is also in danger of being lost. In view of Section 53 of the Code of Civil Procedure they may not be able to contend that their fathers share is not liable or that it devolved on them on his death as survivors, but by what rule of law, one may well ask, are they debarred from contending that the decree was not passed against their father in a representative capacity and did not bind them? Is the case to be decided against them without giving them even one opportunity of questioning the transaction if they wished to contest it? The pious duty of a son which makes him liable to pay his fathers debt assumes the existence of certain debts which have to be paid. The question of illegality or immorality would only arise when the debts were in fact incurred. If the debts were found not to be due, it would be impossible to contend that the sons were liable to discharge what was not really a liability of their father. The power of a Hindu father is limited when he is dealing with ancestral property or when he is doing something by which the sons rights in the ancestral property may be affected. If a father mortgages ancestral property to another person in consideration of a debt which does not exist, the mortgage would be more or less in the nature of a gift. It cannot be contested that the father is incapable of making gifts of ancestral property except in very special circumstances and to a very limited extent. If a father mortgages ancestral property to another person in consideration of a debt which does not exist, the mortgage would be more or less in the nature of a gift. It cannot be contested that the father is incapable of making gifts of ancestral property except in very special circumstances and to a very limited extent. If a decree is subsequently passed against the father on the basis of such a mortgage and the property sold in execution of that decree and the sons have no right to show, in what must in the nature of things be a separate suit, that they had rights in the property which could not have been alienated by their father, the rights must be held to have been extinguished on the ground that their father was competent to make a gift of their share in the property as well. We hope this is not the law and we are convinced that it is not so. 12. This question has been considered in a number of cases. The first case to which reference may be made is that of Ramasamayyan v. Virasami Ayyar I.L.R. (1898) Mad. 222, where Shepherd J. observed as follows: It is argued on behalf of the Appellant that the only question which the son of a Hindu debtor can raise is as to the nature of the debt, and that he cannot question the existence of a debt which forms the foundation of a decree against his father. According to this contention it would be open to the father by confessing judgment to procure by indirect means the sale of the entire estate when he could not lawfully alienate it by a voluntary conveyance. The limitation which is imposed by Hindu law on the fathers power of alienation would become illusory. But this is clearly not the law. Whether the sale is a voluntary or an enforced sale, its validity depends upon the existence of a just debt in satisfaction of which the sale is effected. 13. Similar observations are to be found in the judgments written by no less eminent Judges than Subramania Ayyar J. and Benson J., at pages 66 and 67 of the report in Ramasami Nadan v. Ulaganatha Goundan I.L.R. (1898) Mad. 49 (F.B.). 13. Similar observations are to be found in the judgments written by no less eminent Judges than Subramania Ayyar J. and Benson J., at pages 66 and 67 of the report in Ramasami Nadan v. Ulaganatha Goundan I.L.R. (1898) Mad. 49 (F.B.). The same view was taken in Thiruvenkata Mudaliar v. Muthu Aiyar (1904) 14 M.L.J. 431 Malayandi v. Subbaraya (1910) 21 M.L.J. 521, Bhagwant v. Tursi Ram (1918) 51 I.C. 130, Kasturi Mal v. Lajja Ram (1921) 60 I.C. 751 and Beni Parshad v. Puran Chand I.L.R. (1895) Cal. 262. An observation made by their Lordships of the Privy Council in Nanomi Babuasin v. Modhun Mohun I.L.R. (1885) Cal. 21 (P.C.) also shows that a plea of this nature is available to the sons. It would have been unnecessary to discuss this point in such detail had it not been for an observation in the tenth edition of Maynes Hindu Law and Usage (in the note at page 431) where it has been observed by the learned editor that in a suit upon a debt against the father he represents the sons when they are not made parties so far as the factum of the debt is concerned and the judgment against the father itself creates the debt. A number of cases have been cited for this proposition but we have not been able to find any observation in these cases that such a plea is not open to the sons. It is true that a statement is to be found in most of them that the only defences open to the sons are those of immorality or illegality but there is no specific reference that the sons are not entitled to question the existence of the debt itself. In the absence of a clear decision we cannot hold that the learned Judges were laying down the law differently. The only decision out of the cases cited which discusses the point is the one reported as Indar Pal v. The Imperial Bank I.L.R. (1915) All. 214. This does not support the contention for which it has been cited. Indeed it contains an observation to the contrary at page 218 of the report. The dictum of that eminent Judge Bhashyam Iyengar J. in Periasami Mudaliar v. Seetharama Chettiar I.L.R. (1903) Mad. 214. This does not support the contention for which it has been cited. Indeed it contains an observation to the contrary at page 218 of the report. The dictum of that eminent Judge Bhashyam Iyengar J. in Periasami Mudaliar v. Seetharama Chettiar I.L.R. (1903) Mad. 243 (F.B.) to the effect that the judgment against the father creates a debt was not really necessary for the disposal of that case and does not need to be examined here, when we find Section 53 added to the Code of Civil Procedure, 1908, to surmount the difficulties of a fathers creditors in realizing their decree out of the properties which had devolved on the sons by the rule of survivorship. We are aware that in this and other cases, like Mohan Lai v. Bala Prasad I.L.R. (1922) All. 649 and Abdul Karim v. Ram Kishore I.L.R. (1925) All. 421, it has been observed by the learned Judges that the only defences open to the sons were those of illegality or immorality. But, having gone through the judgments, we are of opinion that it was more or less assumed by them that the debts existed in point of fact and it was therefore unnecessary for them to state in view of that assumption that the sons could also challenge the factum of the debt. With great respect to the learned editor, we cannot agree with him that the sons cannot dispute their fathers liability except in respect of the nature of the debt regarding which the father could not represent the sons. There appears to be no reason to hold why he should be held to be representing the sons in regard to the factum of the debt. 14. The next contention raised by Mr. Ramakrishna Ayyar was that after the addition of Section 53 to the Code of Civil Procedure it would not be possible for a son or other descendant, whether he had been impleaded in the suit or not, to object to the sale of the property held in execution of a decree passed for debts incurred by his deceased ancestor. Ramakrishna Ayyar was that after the addition of Section 53 to the Code of Civil Procedure it would not be possible for a son or other descendant, whether he had been impleaded in the suit or not, to object to the sale of the property held in execution of a decree passed for debts incurred by his deceased ancestor. There is no doubt that the property in the descendants hands would, for the purposes mentioned in the section, be deemed to be the property of the deceased ancestor and the son or other descendant must, in spite of the rule of survivorship, be regarded to be a legal representative but it must not be overlooked that the section assumes the existence of a debt and declares in effect that the property which was liable under Hindu law for payment of a debt incurred by the ancestor would, despite his death, continue to remain liable in the hands of his descendant as his legal representative. The ancestors death could not have the result of improving a creditors position. The section was enacted to take away a possible plea by the descendant that the property held by his ancestor during his lifetime had devolved on the former by survivor-ship and was not liable for the payment of the latters debts. At the same time it was not meant to deprive the descendant of his right to contest the existence of the debt where he was in danger of losing the whole of his ancestral property. There is no provision in Section 53, Code of Civil Procedure, that the entire property belonging to a joint family, of which the father was karta, would be necessarily liable for payment of debts incurred by him. The question would depend for its answer on the application of principles contained in Hindu law. If in a given case, the debt incurred by a father is found to have been so done for purposes and objects binding on the whole of the family of which he is the head, or even for his own personal benefit provided it was not for an immoral or illegal purpose, the entire coparcenary property in his sons or other descendants hand would, according to those principles, be liable for payment. This is due to the fact that the debt was contracted by the father either in his capacity as manager and head of the family for family purposes, in which case the descendants must have had its advantage or at least be assumed to have had it, or even when it was done for the fathers own personal benefit, the obligation of religion and piety makes them liable to discharge the same. In these circumstances the family property would be taken to have devolved on the descendants as legal representatives and it would be useless for them to plead that the property did not belong to their ancestor or that as joint tenants they had an interest in the property which could not have been burdened or alienated by the ancestor. But if the debt did not exist in fact or it was illegal or immoral and the property had not been purchased by a stranger, they could raise these questions and, if they succeed in establishing their contentions or rather if these contentions were found in their favour, their shares in the joint family property would not be taken to have devolved on them in their capacity as legal representatives and would not be liable to be sold and could, even if sold, be recovered by them. Briefly speaking these principles have been imported into Section 53, Code of Civil Procedure, by the words "which is liable under Hindu law for the payment of the debt of a deceased ancestor." But we do not find any provision in this or any other section of the Code which may justify us in holding that the descendants right to contest the existence of the debt or the illegality and immorality of its character has been taken away even when they were not impleaded in the suit and had no occasion to challenge the debt or alienation contracted or made by their ancestor and to show that he had not represented them in the suit. 15. The property in Appannas hands which was mortgaged by him has been found to be ancestral property and the debt in respect of which it was mortgaged held to be non-existent and in any ease not binding on the present Plaintiffs. The mortgage and the sale in execution must therefore be held not to have passed their interests in the property. The mortgage and the sale in execution must therefore be held not to have passed their interests in the property. Appannas share however which he had in the properties before his death stands on a different footing. He had mortgaged the property himself and had allowed a decree for sale to be passed against himself without contesting it. So far as his share is concerned, it must be deemed to be Appannas property and to have been held by the Plaintiffs in their capacity as his legal representatives. 16. It was next contended by Mr. Ramakrishna Ayyar that these pleas, if available at all to the Plaintiffs, should have been taken by them in execution proceedings particularly when the sons were impleaded as legal representatives of their father before the final decree had been passed, and that a separate suit was barred under the provisions of Section 47, Code of Civil Procedure. For this contention reliance Was placed on a case reported as Sheik Karoo v. Rameshwar Sao A.I.R. 1923 Pat 143. This objection was not taken in the written statement and has been taken before us for the first time. Since this is purely a question of law, we have permitted it to be argued here. A short answer to this contention is that Section 47, Code of Civil Procedure, applies to matters which arise after a decree has been passed and not to those which were in existence even at the time when the suit was instituted. If objections regarding the correctness or the validity of a decree are raised by a person who was a party to the suit or by one who must be deemed to have been a party, these will be barred not by Section 47, Code of Civil Procedure, but by some other provision of law which we need not pause to consider here. If, on the other hand, these are being raised by a third party and are of a nature which go to the root of the matter and attack the decree itself, they could not be gone into in execution proceedings for the simple reason that an executing Court cannot be asked to go behind the decree. Section 47, Code of Civil Procedure, provides that questions relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Section 47, Code of Civil Procedure, provides that questions relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. If persons who were not parties to the suit and who have been already found not to be represented by their father, desire to challenge the decree or the mortgage on the basis of which the decree was passed, they could not do so in execution proceedings. In fact the Plaintiffs tried to raise these contentions, which they have raised in the present suit, as soon as they were impleaded as legal representatives of their father. The Court which had passed the preliminary decree was prepared to go into these matters to a certain extent. But on an appeal preferred by the second Defendant (Appeal Suit No. 61 of 1924) the District Judge of Salem set aside the order and made the following remarks: The mortgage money not having been paid within the time prescribed by the preliminary decree the Appellant applied for a final decree: but his application was opposed not only by the first Defendant but also by the sons of the deceased second Defendant who had been brought on the record as his legal representatives. The lower Court has observed that the Defendants 4 to 6, i.e., the legal representatives of the second Defendant attacked the hypothecation bond and the preliminary decree in toto but that at the hearing of the application the main contention of these Defendants was that out of the seven items of the property covered by the hypothecation bond and the preliminary decree, Nos. 1, 2, 3 and 4 were service inam lands and consequently inalienable. It is perfectly obvious that these Defendants were not entitled to attack the hypothecation bond or the preliminary decree and the contention which the lower Court did permit them to put forward amounted substantially to a claim that they had a title independent of that of the mortgagors. Such a contention would certainly have been outside the scope of a mortgage suit at any stage. In dealing with an application under Order XXXIV, Rule 5, the only question which the Court has to consider is whether the mortgage money has been paid. Such a contention would certainly have been outside the scope of a mortgage suit at any stage. In dealing with an application under Order XXXIV, Rule 5, the only question which the Court has to consider is whether the mortgage money has been paid. If it has not, the Court is bound to give the Applicant a final decree in terms of the preliminary decree already passed. What the Court orders to be sold is the right, title and interest of the mortgagors in the hypothecated property; and it is not the business of the Court in a mortgage suit to enquire into the nature of the right, title and interest at the instance of any claimants or for the benefit of possible purchasers. In modification therefore of the final decree passed by the lower Court I direct that the Appellant be given a final decree in the terms of the preliminary decree passed by the lower Court. 17. In view of what was contended on behalf of the second Defendant in the above appeal, he should be held to be precluded from taking this objection in this Court. But even if we do not rest our decision on this ground, we must hold that the grounds raised fey the Plaintiffs in the suit do not fall within the ambit of Section 47, Code of Civil Procedure, and could not have been enquired into by the executing Court. 18. As for the Patna decision in Sheik Karoo v. Rameshwar Sao A.I.R. 1923 Pat. 143 it is true that it does take the view that a separate suit for the determination of the liability of the sons for the debt covered by the decree passed against their father would be barred by Section 47, Code of Civil Procedure. But this decision was based on the construction placed on Section 53, Code of Civil Procedure, which has been considered by us to some extent in an earlier portion of this judgment, and is based on the assumption that the sons had no independent rights in the property and were represented by their father in the suit. But this decision was based on the construction placed on Section 53, Code of Civil Procedure, which has been considered by us to some extent in an earlier portion of this judgment, and is based on the assumption that the sons had no independent rights in the property and were represented by their father in the suit. There appears to be no warrant for holding that a processual amendment in the Code of Civil Procedure was meant to deprive the Hindu sons of their rights in the property or to increase the representative capacity of the father* to an extent not authorized by Hindu law. When the sons attack the decree on the ground that the debt did not exist or that it was immoral they are attacking the validity of the decree so far as they are concerned and the liability of the ancestral property to be sold in execution. Both these questions are interdependent and one cannot be decided without the other. If the debt did exist and was of a nature which could have been incurred by the father so as to make it a pious duty of the sons to discharge it, the ancestral property would be liable to be sold and not otherwise. As stated above, a person cannot be permitted to attack the validity of the decree in execution proceedings, except in cases where it has been passed against a dead person and is an absolute nullity. If the execution Court cannot be asked to go behind and question the validity of the decree, the question of the liability of the property which is mixed up with the first question cannot also be decided in execution. It was not possible for the Plaintiffs to make an application under Order XXI, Rule 58, firstly, because it was a mortgage decree and, secondly, because they were impugning the mortgage effected by their father and the validity of the decree passed on the basis of that mortgage. We must, therefore, although with great deference, disagree with the view expressed in the Patna decision. There are cases which have taken a contrary view and there is no reason why we should not follow them when they correspond with our own view; see Tallapragada Sundarappa v. Boorugapalli Sreeramulu I.L.R. (1907) Maqd. 402 and Ala Singh v. Wasawa (1912) 15 I.C. 25. 19. There are cases which have taken a contrary view and there is no reason why we should not follow them when they correspond with our own view; see Tallapragada Sundarappa v. Boorugapalli Sreeramulu I.L.R. (1907) Maqd. 402 and Ala Singh v. Wasawa (1912) 15 I.C. 25. 19. The last question which has to be decided here is one of limitation. It has been contended that the suit was barred under Article 12 of the Limitation Act. This article would apply only if the sale is held to be binding on the Plaintiffs. If the Plaintiffs interest is, on the other hand, found not to have been sold or the sale is held to be void against them, this article cannot stand in their way and they will be entitled to the relief claimed by them. The Plaintiffs, as stated before, were no parties to the suit and were impleaded as Appannas legal representatives after the preliminary decree had been passed. Were they represented then by Appanna during his lifetime? If they were so, they would not be able to get the relief unless the sale is first set aside. We have already observed that there is nothing on the record to show that the suit was brought against Appanjia as a manager or karta of the family. Nor was the debt alleged by the second Defendant in his plaint to be binding on the joint family. The consideration for which the mortgage was executed by Appanna has not been found to be binding even on him although in view of the decree passed against him, it is no longer open to the Plaintiffs as his legal representatives to question the decree. But this does not mean that the decree has to be held binding on the Plaintiffs as well in their individual character. Is the sale then to be held binding on them in their personal capacity? We are not of that opinion. When they were not represented, by their father in the suit and the objections raised by them to the validity of the mortgage could, not be and were not entertained by the Court, the decree and the sale could not be held to be binding on them, in the capacity in which the suit has now been brought. The sale being thus void, it was unnecessary for them to sue for setting it aside. The sale being thus void, it was unnecessary for them to sue for setting it aside. Moreover, their cause of action arose on their dispossession of the property in 1929. Had they not been dispossessed it would not have been really necessary for them to institute the present suit. The sale did not really affect their title and it could have been safely ignored by them. It might be stated here that the sale of service tenure lands was a nullity and the Plaintiffs were fully justified in not taking any notice of it. Learned Counsel for the Respondents however relies on two cases, one of Patna and the other of this Court, and contends that in similar circumstances Article 12 of the Limitation Act was held to be a bar. The first case on which reliance has been placed is reported as Bhola Jha v. Lala Kali Prasad (1916) 1 P.L.J. 180. The facts of that case were that some properties belonging to a joint Hindu family were mortgaged by the father who was the karta of that family. The mortgagees sued the father on the basis of their mortgage, obtained a decree, brought the properties to sale and purchased them themselves. The sons then instituted a suit for the recovery of possession of these properties and asked for a decree for redemption in the alternative. The trial Court held the Plaintiffs, and this is important, to be bound to pay the debts contracted by their father but granted them a decree for redemption. When the case came up before the High Court, it was urged that since the Plaintiffs were held bound by the mortgage and the decree, the sale of the properties had got to be set aside before they were allowed to redeem. The learned Judges accepted their contention and held that if a suit for redemption was held to be maintainable, the sale would have to be set aside before the Plaintiffs were allowed to redeem. The decree for redemption was considered to be inconsistent with the sale already held and rightly so, if we may say that with respect. The suit was therefore dismissed as being barred by Article 12 of the Limitation Act. 20. The decree for redemption was considered to be inconsistent with the sale already held and rightly so, if we may say that with respect. The suit was therefore dismissed as being barred by Article 12 of the Limitation Act. 20. If the Plaintiffs in the present suit were held bound by the mortgage effected by their father or if the decree was held to be binding on them in their individual character, they could not have been held entitled to maintain this action and their suit would have been also barred by limitation. But fortunately for them they have not been held to be so bound or represented by their father in the suit and the decision has therefore no application to the facts of this case. 21. The next case on which reliance is placed was decided by a Division Bench of this Court and is reported as Narayana Naicken v. Venkataswami Naicken (1926) 51 M.L.J. 845 . In that case it was held that the sale in execution of a decree against a father would not be void as against the sons but only voidable at their option. The question whether the debt incurred by the father was of such a nature as to be binding on his sons was not gone into. It was more or less assumed that the sale of property in pursuance of a decree passed against a Hindu father would necessarily involve the sale of the sons rights as well. As the matter has already been discussed by us in this judgment, it is unnecessary to examine this proposition again. The matter in our view would have to depend on the finding whether a debt was contracted by the father as the manager of the joint Hindu family so as to be binding on the sons, which it would be their legal or pious obligation to repay. The matter in our view would have to depend on the finding whether a debt was contracted by the father as the manager of the joint Hindu family so as to be binding on the sons, which it would be their legal or pious obligation to repay. If, on the other hand, the debt is found not to have been due or to have been incurred for purposes which were immoral or illegal, a decree obtained in respect of such a transaction would not bind the sons and the sale held in execution could not be held to be binding on them so as to necessitate a prayer for setting it aside, particularly when the property was purchased by either the decree-holder himself or even by a stranger having knowledge of the circumstances in which the debt was contracted. We are, with great deference, unable to agree with this decision and must hold that the suit was not barred by Article 12 of the Limitation Act. 22. The appeal must for the above reasons be accepted and is hereby allowed. The decree of the lower Court is set aside and the suit instituted by the Plaintiffs decreed to the extent of the property comprised in the "A" schedule which they take along with the first Defendant and to the extent of three-eighths share in the property covered by the "B" schedule with mesne profits at the rate found by the lower Court. The Plaintiffs will get their costs here and in the Court below from the contesting Respondents. 23. The court-fee payable on the plaint as well as on the memorandum of appeal should be paid to the Government by the fifth Respondent out of the estate in his hands left by the deceased second Defendant.