Subba Rao, J.- The following three questions have been referred to the Full Bench by a Divisional Bench of this Court, of which I was a member: (i) Whether a mortgage decree for sale simpliciter, without any personal liability, obtained against a father alone on a mortgage of the joint family property created by him for a purpose not binding on the family is binding on the son’s share by the application of the principle of pious obligation; (ii) Whether a sale held of the joint family property in execution of such a decree is binding on the son’s share and (iii) What is the period of limitation for the son’s suit to set aside the said decree and the sale held in execution thereof. The relevant and short statement of facts which led up to this reference may be stated:-Hajee Abdul Rahiman, the 2nd defendant in the suit, obtained in a partition effected with the other sharers items 2 to 7 and 9 to 11 of the plaint schedule. Subsequently he acquired items 1 and 8 from his brother Hajee Muhammad Ibrahim Sait. On 5th December, 1929, the 2nd defendant executed a mortgage deed hypothecating items 1 to 9 for a sum of Rs.1,50,000 in favour of the 1st defendant company, the Provident Investment Company, Ltd., Bombay. As the mortgage amount was not paid, the company filed O.S. No.1442 of 1932 on the original side of the Bombay High Court and obtained a preliminary decree for sale on 16th November, 1932. In due course, final decree for sale was passed on nth July, 1933. During the execution proceedings, in order to prevent the sale and to gain time, the 2nd defendant offered two more items, items 10 and 11 of the plaint schedule as collateral security. The High Court, by a consent order dated 30th August, 1934, accepted the arrangement and adjourned the sale. But as the decree amount was not paid within the extended time, the items mortgaged as well as the two items given as additional security were brought to sale. The decree-holder became the auction-purchaser. The sale of items 1 to 9 was confirmed on 22nd November, 1935, and that of item 10 was confirmed on 26th June, 1936. The auction-purchaser took delivery in April, 1936. Thereafter, the company sold the 9th item to third parties. The decree-holder became the auction-purchaser. The sale of items 1 to 9 was confirmed on 22nd November, 1935, and that of item 10 was confirmed on 26th June, 1936. The auction-purchaser took delivery in April, 1936. Thereafter, the company sold the 9th item to third parties. As the sale proceeds were insufficient to discharge the decree amount, on 16th March, 1937, a personal decree was passed against the 2nd defendant for the balance. Abdul Hameed Sait, a son of the 2nd defendant and his son Adam Sait, minor represented by his father, filed O.S. No.17 of 1946 on the file of the Court of the Subordinate Judge of Ootacamund in forma pauperis for a declaration that the decree in O.S. No.1442 of 1932 on the file of the High Court, Bombay, and the sale held in execution thereof were not binding on them, for possession, of the properties for mesne profits and for other incidental reliefs. The learned Subordinate Judge dismissed the suit. The plaintiffs preferred A.S. No.619 of 1948 to this Court in forma pauperis. It may also be mentioned at this stage that the reference was made on the assumption that Hindu Law governs the parties. It is also admitted that the mortgage executed by the 2nd defendant was neither for necessity nor for the benefit of the joint family estate. It is not disputed that the entire mortgaged property was sold in execution of the mortgage decree for sale. On the aforesaid facts and the admissions made by the parties, the aforesaid three questions were formulated for decision. The first two points may be taken up together. The learned counsel for the appellants contended that the mortgage deed executed by the 2nd defendant for purposes not binding on the joint family estate was illegal and, therefore, the decree obtained on the foot of that mortgage and the sale held in execution thereof were equally bad and not binding on the other members of the family as the mortgage decree and the sale held were only the mode of working out of the rights conferred under the mortgage deed. The learned counsel for the respondents countered this argument by stating that though a decree was obtained on the foot of the mortgage, it involved also a debt of the father and as the family property was sold through Court to discharge that debt, the son cannot question the sale except by alleging and proving that the debt was incurred for illegal and immoral purposes. He would further argue that a personal liability was created under the mortgage decree, and, therefore the sale held to discharge the personal liability was binding on the plaintiffs. To give an adequate answer to the first two questions referred it would be convenient to notice the settled law on the question of the son’s liability to discharge the father’s debts in a joint family governed by Mitakshara, to consider the conflict of decisions, if any, on any particular aspect and to evolve a satisfactory solution to steer clear of the conflict. At the outset, therefore, it would be necessary to ascertain the scope of the son’s liability under Hindu Law based on the principle of pious obligation and the manner of its enforcement. But it would be pedantic and indeed futile to trace its origin to Hindu Law texts as the doctrine has been changed beyond recognition by case-law. What was a pious duty on the part of the son to pay his father’s debts has gradually crystallised into a legal liability of the joint estate of the father and the sons. The leading cases forming the landmarks on the subject illustrate the progressive development of law. Muddan Thakoor v. Kantoo Lall1 is the first decision where their Lordships of the Privy Council treated the obligation of a son to pay his father’s debts, unless contracted for immoral purposes, as affording in itself a sufficient answer to a suit brought by a son either to impeach the sales by a private contract for the purpose of raising money in order to satisfy pre-existing debts or to recover property sold in execution of a decree of Court. A later decision of the Privy Council, Suraj Bunsi Koer v. Sheo Proshad2, understood the earlier decision as laying down the following two propositions (i) that where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt or a sale in execution of a decree for the father’s debt his sons by reason of their duty to pay their father’s debts, cannot recover that property, unless they show that the debts were contracted for immoral purposes and that the purchasers had notice that they were so contracted and (ii) that purchasers in an execution sale, being strangers to the suit, if they have no notice that the debts were so contracted, are not bound to make an enquiry beyond what appears on the face of the proceedings. In the latter case the facts were: The father of the plaintiffs executed in favour of the defendant a mortagge deed hypothecating the entire joint family estate for a sum of Rs.13,000. The mortgagee obtained a decree for sale of the mortgage properties. During the execution of the decree the mortgagor died and his sons were brought on record. The sons as minors represented by their mother raised objection to the execution of the decree but that was overruled and the properties were sold and purchased by third parties. The minor sons filed a suit for declaration of their rights and for an injunction restraining the purchasers from taking possession of the property. The Judicial Committee held that under the sale only the interest of the father was conveyed to the purchasers. In dealing with the contentions of the parties, their Lordships considered in detail the principles of Hindu Law, which are the foundation of the plaintiff’s claim and the rights which flow from them. They accepted the principle laid down in Muddan Thakoor’s case1, that the sons cannot recover property sold in execution of a decree against the father unless they show that the debts were contracted by the father for immoral purposes and that the purchasers had notice that they were so contracted, though on the facts of the case, they held that what was purchased was only the share of the father. The Privy Council again in Nanomi Babuasin v. Madun Mohan2, had to consider the scope of the right of a son to question the sale of a joint estate made by the father or a sale held in execution of a decree obtained against him alone. There one Girdhar Singh gave a lease of the joint family property to one Mr, Collis as part of an arrangement under which Girdhar took a loan of Rs.45,000. After the death of Mr. Collis, Girdhar dispossessed his wife Mrs.Collis. She filed a suit for mesne profits and, in execution thereof, a portion of the family ancestral land was brought to sale and was purchased by the respondent. The sons of Girdhar instituted a suit for setting aside the sale and for recovery of possession. Alternatively, they contended that only the share of Girdhar passed under the sale to the purchasers. The Judicial Committee held that the sale of the family estate was binding on the plaintiffs. Their Lordships observed at page 35:- “Destructive as it may be of the principle of independent coparcenary rights in the sons, the decisions have for some time established the principle that the sons cannot set up their rights against their father’s alienation for an antecedent debt, or against his creditor’s remedies for their debts, if not tainted with immorality. On this important question of the liability of the joint family estate, their Lordships think that there is now no conflict of authority.” The decision of the Judicial Committee in Sahu Ram Chandra v. Bhup Singh3, wherein their Lordships, while recognising the principles laid down in the earlier decisions, made some observations in regard to the character of an antecedent debt, introduced some confusion in the law but the later decision of the Privy Council in Brij Narain v. Mangal Prasad4clarified the position. The Privy Council in the later case, after reviewing the law on the subject, laid down their conclusions in the form of propositions, which though they authoritatively settled the law in some respects, gave rise to further doubts and difficulties in other directions. The facts in that case were one Sitaram granted a mortgage for Rs.11,000 in favour of two persons. The mortgage was secured on ancestral and joint family property. At the time of the mortgage, he had two minor sons. The facts in that case were one Sitaram granted a mortgage for Rs.11,000 in favour of two persons. The mortgage was secured on ancestral and joint family property. At the time of the mortgage, he had two minor sons. In 1912 the mortgagee brought a suit on a mortgage and obtained a decree. In 1913 the minors represented by their mother brought a suit for a declaration that the mortgage was not binding on them and that the decree granted in so far as they were concerned, was null and void. The mortgage in that case was executed in order to pay off two prior mortgages on the same property. The Privy Council held that the mortgage in question was raised in order to pay an antecedent debt, viz., the two older mortgages and, consequently, it was binding on the estate. After re-stating the law on the undoubted right of a manager to bind family estate for the necessity of the family,they proceeded to make the following observations in respect of the theory of pious obligation at page 101:- “But then there comes in the further doctrine that debt has been contracted by the father and the pious obligation incumbent on the son to see his father’s debts paid prevents him from asserting that the family estate, so far as his interest is concerned, is not liable to purge that debt. It may become liable by being taken in execution on the back of a decree obtained against the father, or it might become liable by being mortgaged by the father to pay the debt for which otherwise decree might be taken and execution be sought.” They noticed the conflict of the two principles, viz., the general rule of Mitakshara Law that a manager cannot burden the estate for his own purposes and the obligation of the son to discharge his father’s debts based on the doctrine of pious duty and suggested that the term antecedent debt represents a more or less desperate attempt to reconcile the conflicting principles but in view of the principle of stare decisis, they refused to unsettle what had been settled by a long course of decisions. To clarify the position and presumably to prevent further argument based on Hindu Law texts, they laid down their conclusions in the following five propositions: “(1) The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity; but (2) if he is the father and the reversionaries are the sons he may by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt; (3) if he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate; (4) antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached; (5) there is no rule that this result is affected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead”. The Privy Council reiterated the principle in a subsequent decision, Lal Bahadur v. Ambika Prasad.1They held that the earlier mortgages executed by the father, not being for immoral and illegal purposes, can sustain a sale of the family property by the father on the ground that the mortgages were antecedent debts. In Kandasami Goundan v. Kuppu Mooppan2, a Divisional Bench of this Court gave a conditional decree against the sons under Order 34, rule 6, Civil Procedure Code, to the effect that if the sale proceeds of the father’s share of the property were found to be insufficient, the mortgagee was entitled to recover the amount due to him against the mortgagor personally and against the ancestral properties of himself and his sons. They pointed out the principle at page 423:- “It was held that the pious obligation of the sons did arise during the father’s life-time and that the debt involved in a mortgage was an antecedent debt which attracted the pious obligation of the sons to pay, even though the mortgage as a transfer of an interest in joint ancestral property failed.” The learned Judges made a composite decree. From the aforesaid discussion of the cases, the settled law on the subject may be summarised. From the aforesaid discussion of the cases, the settled law on the subject may be summarised. The theory of pious obligation, which had its roots in the texts of Brihaspathi and Narada and which was originally a religious and moral duty of the son to save the soul of his father from perdition, has developed step by step till it has imposed a liability on the entire family property to meet the said obligation. Though in its origin, the son was bound to discharge the debts not only from his joint family property but also from his self-acquisitions, the later development of the law confined it only to the family assets in his hands. For the application of that principle, a distinction is made between simple debts and secured debts. For the simple debt of the father, the son’s share in joint family property is liable, provided the debt was not incurred for immoral or illegal purposes. The father has power to alienate the joint estate for discharging his debt. A creditor may realise his debt by enforcing it in a Court of law and bringing the joint family estate including the son’s share to sale through Court. He may enforce his right against his sons during the father’s lifetime or even after his death. He may implead the sons in a suit against the father and obtain a decree and execute the decree against the entire joint family estate. He may file a suit against the father alone, and, in execution of the decree obtained aginst him, sell either the father’s share in the family property or the entire family estate including the son’s share. In the latter case, the son may intervene in execution proceedings or question the sale by a collateral proceeding on the ground that the debt which fructified into a decree, was incurred by the father for illegal or immoral purposes. But in the case of a mortgage, different considerations arise. Though under Hindu Law as laid down in texts, there was no distinction between a secured debt and an unsecured debt, it is now firmly established that a mortgage is an alienation and that the considerations applicable to an alienation will equally apply to the case of a mortgage. If so, a manager of a joint Hindu family can mortgage joint family estate for necessity or for the benefit of the estate. If so, a manager of a joint Hindu family can mortgage joint family estate for necessity or for the benefit of the estate. So too in the case of the father he can execute a mortgage of the property of the joint family consisting of himself and his sons for necessity and for the benefit of the family. But in the case of the father, this restriction of his right would lead to the anomaly of placing a simple creditor in a more advantageous position than a secured creditor, for, in the case of a simple debt, the father could alienate the joint family property or a creditor can enforce it through Court and bring the family property to sale, whereas in the case of a mortgage, the mortgage could not be binding on the family, unless it was executed for necessity or for the benefit of the estate. Presumably to avoid this anomaly, it has been held by decided cases that the debt involved in a mortgage can sustain the validity of a subsequent mortgage or a sale. An earlier mortgage debt, therefore, is held to be “an antecedent debt” enough in law to sustain a subsequent mortgage or a sale. Logically, there cannot be a distinction in principle even if a decree is passed on the mortgage as it is certainly an antecedent debt, and the father can alienate family property to discharge that decree for the decree by its own force creates a debt against him. See Reddi Krishnan Naidu v. Chintala Somi Naidu1. It cannot also be disputed that if a creditor gives up his mortgage interest and obtains a money decree against the father, or, if after exhausting the mortgage property, he obtains a personal decree against the joint estate, the joint family estate can be brought to sale and the purchase can be impugned only on the ground available to the pruchaser in execution of a money decree. There ends the field of agreement and thereafter emerges the domain of conflict. But in a case where the entire joint family property including the son’s share is sold in execution of a mortgage decree for sale, there is divergence of opinion. There ends the field of agreement and thereafter emerges the domain of conflict. But in a case where the entire joint family property including the son’s share is sold in execution of a mortgage decree for sale, there is divergence of opinion. But all the Courts agree that the son’s share can be sold in execution of a personal decree passed in a mortgage action whether the mortgage decree itself is a composite decree or whether a personal decree is made after the mortgage properties are exhausted in execution of the mortgage decree. But there is no such agreement in the case of a sale of the family property in execution of a mortgage decree for sale, some cases holding that such a sale is not binding on the sons, while others deciding that on principle there is no distinction between such a sale and a sale in execution of a personal decree, for, in either case, the son’s share is sold to discharge the antecedent debt of the father. There is no direct authority of the Madras High Court on this question. In Gajadhar Pande v. Jadubir Pande2, a Divisional Bench of the Allahabad High Court considered a similar question. The question in that case was whether the son can seek to set aside the sale of his interest in joint family property in execution of a mortgage decree for sale against his father without alleging and establishing that the debt was incurred for illegal and immoral purposes. The learned Judges ruled that the same principle applicable to a sale in execution of a money decree would apply even in the case of a mortgage decree. They based their decision on the second proposition laid down in Brij Narain v. Mongol Prasad1. The learned Judges ruled that the same principle applicable to a sale in execution of a money decree would apply even in the case of a mortgage decree. They based their decision on the second proposition laid down in Brij Narain v. Mongol Prasad1. At page 125, Sulaiman, J., observed: “It is obvious that if the word ‘debt’ in this proposition includes both a mortgage debt and a simple money debt, the appellant’s contention cannot prevail, because the father, having incurred the mortgage debt in question, which was not for an immoral purpose, did lay the estate open to be taken in execution of the mortgage decree passed for the payment of the debt.” The learned Judge proceeded to say: “I am, therefore, clearly of opinion that it is not open to the present plaintiffs to have the decree, the auction sale and the subsequent transfer, set aside, specially when rights of a third party have come in, without establishing that the secured debt had been tainted with illegality or immorality.” But in Jagdish Prasad v. Hoshyar Singh2, two of the learned Judges of the Full Bench made observations, which ran counter to those made in Gajadhar Pande v. Jadubir Pande3. But, in that case, the suit was filed by the sons challenging the validity of the mortgage before a sale could take place. Therefore, that decision, though it may have a bearing on the first question referred, is not of any relevance in regard to the second question raised. The learned Judges’ conclusion was that as the mortgagee failed to establish the legal necessity for the loan, the mortgage decree against the sons was illegal. Mukerji, J., and Boys, J., were of the view that the word ‘debt’ in the second proposition in Brij Narain v. Mangal Prasad1, did not contemplate a mortgage but only an unsecured debt, whereas Sulaiman, Acting G.J., would hold that the word ‘debt’ in the second proposition included a mortgage debt but that proposition did not apply to the case as no auction sale had taken place and the property had not yet passed out of the family. I agree with the conclusion arrived at by the learned Judges that the mortgage decree was not binding on the sons. But that is because the mortgage decree can only be equated to the mortgage. I agree with the conclusion arrived at by the learned Judges that the mortgage decree was not binding on the sons. But that is because the mortgage decree can only be equated to the mortgage. Though the mortgage executed by the father is not binding on the share of the son in the joint family estate, it can be treated as an antecedent debt to sustain an alienation made by the father. So too if the mortgage decree qua mortgage decree may not be binding on the son with reference to a Court sale effected to discharge the decree, it may constitute an antecedent debt to sustain it. If there is an anomaly in the latter case, there is also an anomaly in the former one. In Jahan Singh v. Hardat Singh4, another Bench decision, Sulaiman, G.J. and Rachhpal Singh, J., followed the decision in Brij Narain v. Mangal Prasad1, and explained the scope of the Full Bench as follows at page 362:- “But in the Full Bench case the suit was instituted by the sons soon after the morttgage decree had been obtained and before any auction sale took place. The Lucknow Court had held that even where only a decree had been obtained the sons must show immorality or illegality. All the Judges constituting the Full Bench held that this was not so and that the transferee must show legal necessity if the auction sale had not taken place. All other observations made as to what would be the position if an auction sale had taken place were no more than obiter dicta, and therefore, although, they are entitled to great weight, they are not binding upon us.” Another Full Bench of the same High Court in Hira Lal v. Puran Chand5, in a considered judgment accepted the view expressed by Sulaiman, C.J., in Gajadhar Pande v. Jadubir Pande3, and in Jagdish Prasad v. Hoshyar Singh2. After giving a historic retrospect of the theory of pious obligation and after considering the decisions on the subject, they came to the conclusion that the word ‘debt’ in the second proposition laid down by the Judicial Committee in Brij Narain v. Mangal Prasad1, includes both a simple debt and a mortgage debt. In that case, the suit was filed before the properties were sold in execution of the decree and the prayer was for a declaration that the decree was void. In that case, the suit was filed before the properties were sold in execution of the decree and the prayer was for a declaration that the decree was void. The question referred to the Full Bench was whether the word ‘debt’ in the second proposition of their Lordships of the Privy Council in Brij Narain v. Mangal Prasad1, refers only to simple money decree or also to a debt secured by a mortgage. They gave the answer as aforesaid but the report does not disclose what was the final decision of the Court after the reference was answered. The Nagpur High Court in Ganapati v. Rameshwar1, had to consider the question whether joint family property can be sold in execution of a mortgage decree in a suit brought against the father alone. It may be mentioned that in that case also, the sale was not held and the suit was instituted before the sale. The learned Judges held that the said mortgage decree was not binding on the sons as the mortgage was not for necessity. But they took care to point out in that case that the property had not yet gone out of the family and was still not sold. The Bombay High Court in Bharamappa Muredeppa v. Hanumanthappa2, ruled that where a mortgage is created not for necessity or for the payment of an antecedent debt, it binds only the father’s interest in the property and it is only that interest, which may be sold in a mortgage decree. But if a personal decree is obtained against the father, then that decree can be enforced by sale of the son’s interest in the property. It may be noticed that in that case the suit was instituted prior to the sale and, therefore, the second question referred to us did not arise for consideration there. In Jogindar Singh v. The Punjab and Sindhi Bank, Ltd., Amritsar3, the sons of a Hindu father sued for a declaration that the mortgages effected by their father and the decree obtained thereon should not affect their reversionary rights as the mortgages were of ancestral property. The suit was dismissed on the basis of the second proposition in Brij Narain v. Mongol Prasad4, that the word ‘debt’ includes a mortgage debt as well as an unsecured debt. The suit was dismissed on the basis of the second proposition in Brij Narain v. Mongol Prasad4, that the word ‘debt’ includes a mortgage debt as well as an unsecured debt. They gave an additional reason that as the decree contained a provision for a personal decree, if the final decree was not satisfied by sale of the mortgage property, that would enable the mortgagee decree-holder to execute the decree against the sons’ shares also. The decisions relied upon by the learned counsel for the appellants, viz., Deendayal Lal v. Jugdeep Narain Singh5, Pursid Narain Singh v. Hanvoman Sahay6, and Luchman Dass v. Girdhur Chowdhury7, have no bearing on the question raised for in those cases no question of pious obligation was raised or could be raised and indeed the only question argued and decided was what was the interest that was. sold in execution of the decree made therein. It is true that in Deendayal Lal v. Jugdeep Narain Singh5, the decree in execution whereof the property was sold was a mortgage decree against the father and the property was purchased by the decree-holder. The son filed a suit for a declaration that, according to Mitakshara Law, the joint estate of himself and his father could not be taken or sold in execution for the debt of the latter. The Judicial Committee held that what was sold was only the father’s share and confirmed the sale to that extent. No question of pious obligation was raised or argued, presumably for the simple reason that at that time, it was understood that the son’s liability would arise only after the father’s death. So too in Pursid Narain Singh v. Hanooman Sahay6. There, on mortgages, executed by the father alone, decrees were obtained and in execution of those decrees, the right, title and interest in the ancestral property were sold and purchased by the mortgagee. In a suit by the widow and the two sons to recover their shares, in the property from the representatives of the mortgagee, it was held that as no necessity was proved, only the father’s share passed under the sale to the purchaser. Here also no question of any alienation for an antecedent debt was raised or decided. The law on the subject may now be summarised. Here also no question of any alienation for an antecedent debt was raised or decided. The law on the subject may now be summarised. A mortgage decree is a debt within the meaning of the second proposition laid down by the Judicial Committee in Brij Narain v. Mongol Prasad4, viz., that if he is the father and the reversioners are the sons, he may by incurring a debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of the debt. The decisions do not speak in one voice on the interpretation of the word ‘debt’. But the majority and the finally established view is that the word ‘debt’ includes both a mortgage debt as well as a money debt. But the conflict still subsists on the question whether that proposition would apply to a case where the joint family property was not sold in execution of the decree. It is true that the word ‘debt’ is comprehensive enough to take in both a simple debt and a mortgage debt for even in the latter case, a debt is involved in the mortgage. But the said interpretation does not afford an adequate answer to the question whether the mortgage decree against the father qua mortgage decree in binding on the son’s interest in the family property. The proposition in terms applies to a case only where the estate is taken in execution proceeding upon such a decree. But I cannot agree with the learned Judges, who held that the mortgage decree qua mortgage decree would be binding on the interests of the son in joint family property, for by so holding, I would be effacing the distinction between a mortgage and an alienation in discharge of, that mortgage. By the merger of the mortgage in a mortgage decree, the characteristics of the mortgage are not lost. If the mortgage is not binding on the sons for the reason that it was not for necessity or was not in discharge of an antecedent debt, the same infirmities would continue to attach to the mortgage decree. I would, therefore, confine the operation of the second proposition only to a case where joint family property is sold in execution of a decree whether it is a mortgage decree or a simple decree. I would, therefore, confine the operation of the second proposition only to a case where joint family property is sold in execution of a decree whether it is a mortgage decree or a simple decree. So construing, I further hold that by reason of that express proposition-it is not now open to us to go behind it-the son cannot question the sale held in execution of a mortgage decree unless he alleges and proves that the debt involved in the mortgage was incurred for illegal and immoral purposes. But I would like to support my conclusion on a more rational basis. The .aforesaid discussion discloses that there was unanimity of opinion on the question that a private conveyance by the father to discharge an antecedent debt is valid, whether the debt fructified into a mortgage decree or not. It would be a clear and logical extension of that principle to hold that what the father can do, a creditor can enforce through Court. If the private alienation by the father is sustained by the antecedent mortgage decree, the Court sale is equally supported by the said decree. It is said that the Court exercises only the father’s power and, therefore, it cannot sell the joint family estate when the father refuses to exercise that power. To appreciate this argument and to afford a satisfactory answer to it, it would be convenient at this stage to consider some of the relevant decisions, which throw considerable light on the source of the Court’s power in selling the interest of the son in execution of a decree obtained against the father. In Pannalal v. Mst. Naraini1, the Supreme Court made some pertinent observations in answering the argument that a creditor’s claim is entirely based upon the father’s power of dealing with his son’s interest. Their Lordships observed at page 89 as follows: “We do not think that it is quite correct to say that the creditor’s claim is based entirely upon the father’s power of dealing with the son’s interest in the joint estate. Their Lordships observed at page 89 as follows: “We do not think that it is quite correct to say that the creditor’s claim is based entirely upon the father’s power of dealing with the son’s interest in the joint estate. The father’s right of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation, which the Hindu Law imposes upon the sons or one of the means of enforcing it, but it is certainly not the measure of the entire obligation.” As we have said already according to the strict Hindu theory, the obligation of the sons to pay the father’s debts normally arises when the father is dead, disabled or unheard of for a long time. No question of alienation of the family property by the father arises in these events; although it is precisely under these circumstances that the son is obliged to discharge the debts of his father. As was said by Sulaiman, A.C.J., in the case of Bankey Lal v. Durga Prasad2. “The Hindu Law texts based the liability on the pious obligation itself and not on the father’s power to sell the sons’ share.” Observations much to the same effect were made by the Supreme Court again in Sidheswar v. Bhubneshwar.1Their Lordships stated that “It is a special liability created on purely religious grounds and can he enforced only against the sons of she father and no other coparcener. The liability therefore has its basis entirely on the relationship between the father and the son”. The learned Judges proceeded to state: “It cannot be laid down as a proposition of law that the creditor’s power of proceeding against the son’s share in the joint estate for recovery of the debt due by the father is co-extensive with the lather’s power of disposal over such interest.......... If the creditor’s rights are deemed to be based exclusively upon the father’s power of disposition over the son’s interest such rights must necessarily come to an end as soon as the father dies, or there is a partition between him and his sons. If the creditor’s rights are deemed to be based exclusively upon the father’s power of disposition over the son’s interest such rights must necessarily come to an end as soon as the father dies, or there is a partition between him and his sons. It is settled law that even after partition the sons could be made liable for the preparation debts of the father if there was no proper arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated shares of the sons.” In Debi Singh v. Jia Ram2, a Full Bench of the Allahabad High Court equated the power of the father to sell with that of the Court to sell the son’s interest. At page 221, the learned Judges observed: “It is indisputable that an alienation of ancestral property by a father in order to satisfy debts, which are not tainted with immorality, is binding on his sons and it is also clear that what the father could himself have done, the Court is empowered to do for him at the instance of a creditor.” The Judicial Committee in Nanomi Babusain v. Modhun Mohun3, brought out the same idea by stating that if the father’s debt was of a nature to support a sale of the entirety of the joint estate, he might legally have’ sold it without a suit or the creditor might legally procure a sale of it by a suit. The same idea has been felicitously expressed by Sulaiman, C.J., in Jahan Singh v. Hardat Singh4, when he said that if a father can voluntarily transfer property in order to pay off his antecedent debt, the Court may also compel him to do the same by means of a compulsory sale. From the aforesaid decisions, it is apparent that the creditor’s right to proceed against the son’s interest in joint family property, for the debt of the father is not co-extensive with the power of the father to alienate the property to discharge the said debt. There is an essential distinction between the substantive rights of a creditor and the procedure by which that right can be enforced. There is an essential distinction between the substantive rights of a creditor and the procedure by which that right can be enforced. By a long course of decisions, the liability of the son’s share to the debt of the father, which is not vitiated by illegality or immorality, is firmly established. That liability to the creditor can be discharged by the father by alienating the property to him in the exercise of his power to do so. But nothing in law prevents the creditor from enforcing the substantive rights by instituting a suit against both the father and the son and obtaining a decree against them both, in which case there is no occasion for the exercise of the power by the father or in his stead by the Court. But when the creditor chooses to obtain a decree only against the father and seeks to bring the entire family property to sale, the Court by selling the property does only what the father could have done. The power of the Court to sell is co-extensive with the power of the father to sell. The existence and continuance of the power of the father and not the exercise of it by him enables the Court to sell the properties in his Stead. If he exercises the power to sell, no question of the Court selling the property would arise and indeed the Court’s intervention becomes necessary only when a father refuses or neglects to exercise that power. The Court’s power to sell comes to an end when the father’s power ceases. This is illustrated in the class of cases where the father’s power comes to an end either because of the partition in the family or because of the insolvency of the father. As I have already stated, the cessation of the father’s power and the consequent inability of the Court to enforce it only relates to the province of adjective law and the rights of the creditor can be enforced in a properly framed suit. Further, if the argument of the learned counsel for the appellants is sound, the Court cannot sell the share of the son even in execution of a decree for money against the father, if the father refuses to exercise that power. It has been held in innumerable cases that the Court can sell the entire property in execution of such a decree. It has been held in innumerable cases that the Court can sell the entire property in execution of such a decree. It would follow from what I have stated above that as the sale of the family property by the Court discharged the antecedent decree debt, the plaintiffs cannot question the same except by alleging and proving that the debt was incurred for illegal and immoral purposes, which they have not attempted to do in this case. The learned counsel for the appellants contends that the sale in execution of a mortgage decree is only a step in enforcing the mortgage debt and, therefore, it cannot be treated as an alienation to discharge an antecedent decree debt. This argument ignores the distinction between the enforceability of the mortgage decree qua mortgage decree and the right of a son to question the sale after the property was sold. After the sale was held, the debt of the father involved in the mortgage decree is satisfied in full or in part. Thereafter, no question of the enforceability of the mortgage decree arises but only the right of the son to get the sale set aside on specified grounds, viz., immorality and illegality of the debt. The learned counsel for the respondents advanced a further argument, viz., that the mortgage decree is also a personal decree and therefore apart from other considerations, the sale held in execution of the personal decree is binding on the sons, unless they can prove that the debt was vitiated by immorality or illegality. The learned counsel for the respondents advanced a further argument, viz., that the mortgage decree is also a personal decree and therefore apart from other considerations, the sale held in execution of the personal decree is binding on the sons, unless they can prove that the debt was vitiated by immorality or illegality. This argument is sought to be sustained on construction of the provisions of Order 34, Civil Procedure Code and the Form prescribed for decrees in a mortgage action, The material provisions relied upon are Order 34, rule 4, which runs thus: “In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (A) and (c)(i) of sub-rule (1) of rule 2 and further directing that in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold,” and clause (b) of Order 34, rule 2, sub-rule (1), which is as follows: “In a suit for foreclosure if the plaintiff succeeds, the Court shall pass a preliminary decree (b) declaring the amount due at that date and (c) directing (i) that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a)................” Clause 2 of Form 5-A: And it is hereby ordered and decreed as follows: “ "(i) that the defendant do pay into Court on or before the day of or any later date up to which time for payment may be extended by the Court, the said sum of Rs. (ii) that on such payment and on payment thereafter before such date as the Court may fix 01 such amount as the Court may adjudge due in respect of such costs ............” Relying upon the words “if the defendant pays into Court the amount so found in rule 4 of Order 34, read with rule 2(i) and the very explicit words in the form the defendant do pay into Court”, it is contended that the said words, impose a personal liability on the mortgagor. I find it rather difficult to accept this argument. I find it rather difficult to accept this argument. A preliminary mortgage decree declares the amount due and gives an opportunity to the judgment-debtor to deposit in Court the amount so declared within a specified time; in default it authorises the decree-holder to apply for a sale. This is in no sense a personal decree. It cannot be executed against the person of the judgment-debtor or against his properties other than those mortgaged. The only executable decree is the final decree for sale of the mortgaged property or the personal decree that may be passed under Order 34 rule 6, Civil Procedure Code. Under that rule, where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff the Court on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance If there was already a personal decree, rule 6 becomes redundant. A personal decree can, therefore, only be passed under rule 6 unless the mortgagee gave up ihis mortgage right and obtained a money decree in the suit itself. That a personal decree as understood in law is not intended to be passed under the provisions of Order 34, rule 4 read with rule 2 or the form prescribed under the Code is apparent from the fact that even if the personal liability was barred by limitation, the same form would be adopted. I cannot, therefore, hold that under Order 34, rule 4, a Court is authorised to pass a personal decree. Ex. D-4 is the preliminary decree dated 16th November, 1932, passed in the suit. Under that decree, the amount due under the mortgage was declared and the period of redemption was fixed. In default, the mortgagees were authorised to apply for a decree absolute for sale of the properties described in the schedule with liberty to apply for a personal decree against the defendant for the amount of the balance in the event of the net sale proceeds proving insufficient to satisfy in full the aforesaid amount and interest and costs. In default, the mortgagees were authorised to apply for a decree absolute for sale of the properties described in the schedule with liberty to apply for a personal decree against the defendant for the amount of the balance in the event of the net sale proceeds proving insufficient to satisfy in full the aforesaid amount and interest and costs. The preliminary decree made in the case, therefore, involves four parts (i) declaration of the amount due, (ii) the period of redemption, (iii) liberty to apply for a decree for sale, and (iv) liberty to apply for a personal decree. If really the preliminary decree involved a personal decree, it would not have given liberty to apply for a personal decree. The decree was only in terms of the provisions of the Civil Procedure Code and was not intended or as a matter of fact purported to have made any personal decree in the case. At the same time, the provisions of the Civil Procedure Code, the Form prescribed thereunder and the manner in which the preliminary decree was drafted show that the mortgage decree involved a debt and the sale was only a mode of realising that debt:. This takes us back again to the conclusion already arrived at by me, viz.. that the Court sale is binding on the plaintiffs as it was held to discharge an antecedent decree debt. The next question is whether the suit was barred by limitation. The sale of items 1 to 9 and 11 was confirmed on 22nd November, 1935, and that of item 10 was confirmed on 26th June, 1936. The auction-purchaser took delivery of possession of these properties in April, 1936. O.S. No.17 of 1946 was filed on 19th November, 1945, i.e., 9 years and 7 months after dispossession. The learned counsel for the respondent contended that the suit was barred by limitation under Article 12 of the Limitation Act. Article 12 of the Limitation Act reads:- To set aside any of the following sales (a) sale in execution of a decree of a Civil Court. One year when the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought. Article 12 of the Limitation Act reads:- To set aside any of the following sales (a) sale in execution of a decree of a Civil Court. One year when the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought. "The terms of the article itself indicate that it applies only to a case where the court sale is required to be set aside before the plaintiff can ask for any relief in respect of the property covered by that sale. This article was the subject of judicial scrutiny by the Full Bench in Kadar Hussain v. Hussain Saheb1. There the plaintiff’s paternal uncle Dada Miyya owned half an inam land and plaintiff’s father owned the other half. Dada Miyya mortgaged his half to defendants’ father in 1870. The defendants’ father obtained a decree upon this mortgage and the property mortgaged was ordered to be sold, the sale took place in November, 1881, but by some mistake, the whole land was sold instead of Dada Miyya’s half share. The defendants’ father purchased the land and was put in possession. The plaintiff brought the suit on the 25th November, 1892, to recover possession of his half share. The question was whether the suit was barred under Article 12(a) of the II Schedule of the Limitation Act. The Full Bench ruled in a short judgment that the sale could not affect the title of the plaintiff, and therefore, it was not necessary for him to have the sale set aside. This is a direct authority, therefore, for the position that a suit by a person, who was not a party to the suit or the sale proceedings to recover possession of his property, which was erroneously sold as the property of another -person is not governed by Article 12(a) of the Limitation Act. In the present case, the question of limitation arises only if the contention of the appellants is correct on facts and sound in law. In the present case, the question of limitation arises only if the contention of the appellants is correct on facts and sound in law. The facts that may be assumed for the purpose of this argument are: The suit was not filed against the father in a representative capacity: the mortgage was not for necessity or for the benefit of the family estate: the mortgage decree is only against the father and in law the Court had no power to sell the son’s share in execution of a mortgage decree against the father. On these facts the position is analogous to that in Kadar Hussain v. Hussain Sakeb1. The property of A (son), who was not a party to the, suit or the execution proceedings, was sold as the property of B (father) in execution of a decree against the father. As the son was not a party to the decree or to the sale proceedings and as the Court had no power in law to sell the son’s property in execution of the decree, there was no need for the son to seek to set aside the sale. The cause of action accrued to him only when he was dispossessed. He would, therefore, be entitled to file a suit for recovery of possession within 12 years from the date he was dispossessed. Reliance was placed by the learned counsel for the respondents on the decision of a Divisional Bench of this Court in Narayana Naicken v. Venkataswami Naicken2. There the plaintiff and the 2nd defendant were the sons of the 1st defendant and they together with the 1st defendant constituted a joint Hindu family. In execution of the money decree obtained against the 1st defendant, some items belonging to the joint family were sold and were purchased by the 3rd defendant, who took delivery of them. Neither the plaintiff nor the 2nd defendant was a party to the suit in which the said money decree against the 1st defendant was obtained. The plaintiff instituted the suit for a declaration that the money decree obtained against the 1st defendant and the proceedings in execution thereof were not binding upon him and for possession. The learned Judges held that the plaintiff could not get possession without getting the court sale set aside and that under Article of the Limitation Act, the said relief was barred by limitation. The learned Judges held that the plaintiff could not get possession without getting the court sale set aside and that under Article of the Limitation Act, the said relief was barred by limitation. It is not necessary for me in this case to express my view on the correctness of this decision on the facts of that case. But that decision has no bearing on the facts of this case as the Court had power to sell the share of the son in execution of a money decree obtained against the father, though under certain "circumstances, viz., when the debt was incurred for illegal or immoral purposes, the son had the right to seek ,to set aside the sale. As it was a voidable sale, the learned Judge held that the sale was valid till set aside and as the relief for setting it aside was barred by limitation, the relief for possession could not be given. But in the instant case, as I have already stated the question of limitation falls to be considered on the assumption that the Court had no power to sell the son’s share in execution of the mortgage decree against the father and the position is, therefore, analogous to that of a sale of his property in execution of a decree against another. For the aforesaid reasons, I answer the first question in the negative, the 2nd question in the affirmative and on the third question I hold that Article 12(a) of the Limitation Act has no application to the facts of this case and that the suit for possession is in time. This appeal coming on for. final hearing this day after the opinion given by Judgment the Full Bench upon the question referred to by this Bench, the Court delivered the following Judgment delivered by Subba Rao, J.†-This appeal comes on before us again after reference to the Full Bench was answered. Mr. Sankara Ayyar, the learned counsel for the appellant, seeks now to raise two more points, which, if raised on the last occasion, would have made the reference to the Full Bench unnecessary. Mr. Sankara Ayyar, the learned counsel for the appellant, seeks now to raise two more points, which, if raised on the last occasion, would have made the reference to the Full Bench unnecessary. The two points now raised are (1) the High Court at Bombay had no jurisdiction to try the suit inasmuch as the 2nd defendant was living outside its territorial limits and the properties too were not situate within the Bombay Presidency, and the Decrees and Orders Validating Act (V of 1936) which enacted that no decree passed or order made by any of the High Courts of Bengal, Madras or Bombay in exercise of its ordinary civil jurisdiction under clause 12 of the Letters Patent shall be called in question in any proceedings before any other Court on the ground that the High Court passing the decree or making the order had no jurisdiction to pass or make such decree or order was ultra vires and (2) what was brought to sale and sold and purchased in execution of the decree was only the interests of the father. Neither in the pleadings nor in the Court below the contention that the said Act was ultra vires was raised. Mr. Jagannadhayyar who appeared at the time, when we referred the case to a Full Bench, did not also press that point before us. If he did so and if we agreed with him, we would not have made the reference. It is neither fair to the other side nor to the Court that such a point should be allowed to be raised at this stage. The second point is raised before us for the first time. It was not specifically pleaded in the pleadings, and no issue was raised. The judgment does not disclose that any such point was put before the learned Judge. Mr. Jagannadhayyar also did not press this point before us. We could not obviously allow him to raise this point either. It is not disputed that if the principles laid down by the Full Bench are followed, the judgment of the lower Court will be correct. Following the Full Bench decision we dismiss the appeal with costs of this appeal here and before the Full Bench. The appellants will pay the Court-fee due to the Government. K.S. ----- Appeal dismissed.