Judgement JUDGMENT :- Appellants are the four minor sons of the defendant in O.S. No. 94 of 1948, a suit in which a decree was passed against the father alone on 31-3-1949. The learned Subordinate Judge allowed the petition by the decree-holder to bring on record the minor sons in execution and to realise, the decree amount by attachment and sale of their four-fifth share in certain items of property. The District Judge confirmed in appeal the order of the Subordinate Judge allowing this to be done. 2. The relevant facts are these : The suit, O.S. No. 94 of 1948, was filed on 21-6-1948 for possession of immoveable property with mesne profits. On 9-7-1948 a notice of partition was issued by the sons who followed this up with a suit, O.S. No. 154 of 1948, in which this plaintiff-decree-holder was made a party and in which the subject matter of O.S. No. 94 of 1948 was claimed to be joint family property and for a declaration that the alienation by the father to the plaintiff was sham and nominal. O.S. No. 94 of 1948 was decreed against the father on 31-3-1949. The plaintiff in execution recovered possession and in execution of his decree for mesne profits and costs in this suit brought the one-fifth share of the father, who was his only judgment debtor, in other family property to sale on 28-1-1950 and realised a sum of over Rs. 1,000. By then the father had filed. I.P. No. 21 of 1950 and had become adjudicated an insolvent before that sale. The sale proceeds were paid over to the Official Receiver on court orders. A decree in O.S. No. 154 of 1948 was passed on 11-2-1950 for partition of three other items of joint family property between the father and sons. Then on 8-7-1950 the present E.P. No. 441 of 1950 under appeal was filed to execute the decree in O.S. No. 94 of 1948 against the sons shares also. 3. It has been difficult to restrain the learned advocates on both sides from taking me through labyrinthine mazes of several decisions of single Judges, Benches and Full Benches on this matter which now appears to be concluded by authority in case law. 3. It has been difficult to restrain the learned advocates on both sides from taking me through labyrinthine mazes of several decisions of single Judges, Benches and Full Benches on this matter which now appears to be concluded by authority in case law. It is settled law, nor does any advocate before me dispute, that a son is liable even after partition for the pre-partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. The Supreme Court in - Pannalal v. Mst. Naraini, AIR 1952 SC 170 (A), a case in which the father died and the sons were made parties in execution as the legal representatives of the father, clearly laid down that a decree against the father alone, obtained after partition in respect of a prepartition debt cannot be executed against the property that is allotted to the sons in partition because the separated shares of the sons cannot be said to belong to the father. But the position was held to be materially different, if the sons were made parties to the suit as legal representatives of the father and a decree was passed against them limited to the assets of the deceased defendant in their hands, as the proceedings for execution of such a decree would attract the operation of S. 47, C.P.C. and S. 53. C.P.C. would apply. Muknerjea, J. at p. 178 expressing the opinion of the Supreme Court held that the correct view on this point was taken by Wort, J. in his dissenting judgment in the Full Bench case in - Atul Krishna v. Lala Nandanji, AIR 1935 Pat 275 (FB) (B). That was also a case in which the sons who were not parties to the suit were brought on record as legal representative. The Court held that the pious obligation of the sons to pay their fathers personal debts which arose during the lifetime of the father extended beyond partition and that the shares allotted to the sons on partition were liable to be seized by the creditor even after partition, in respect of the fathers pre-partition debt not tainted with illegality or immorality. But the majority held that a decree against the father alone obtained after partition could not be executed against the separated property of the sons who were not parties to the suit, and that in order to do so the decree-holder suit obtain a decree against the pans themselves. Wort, J. took the view that when the sons were impleaded in execution after the father died, the sons shares could be made liable under S. 53, and no separate action against the sons was necessary. As regards that decision Mukherjea, J. made the following observation in AIR 1952 SC 170 (A) : "The majority decision in that case upon Which stress is laid by Mr. Kunzru overlooks the point that S. 47, C.P.C. could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding." This is a case in which the father is still alive. The decree-holder even while his suit O.S. No. 94 of 1948 was pending was perfectly aware that the sons had instituted a partition suit, in which they moreover made him a party and challenged the alienation from the father on which he sued to recover possession. The plaintiff decree-holder has only himself to thank for not making the sons parties in that suit, in which their liability under the decree could have been determined. Having failed to do so, it is quite clear that he cannot execute the decree against the sons shares at any rate so long as the father is alive. China Ramayya v. Venkanraju, AIR 1954 Mad 864 (FB) (C), reviewed a great deal of law which has been sought to be retraversed before me and concluded that a seal of finality was given to this controversy by the Supreme Court in AIR 1952 SC 170 (A). The history of the case law in this matter was again retraversed in - Suryanarayana v. Ganesulu, AIR 1954 Mad 203 (D), where Ramaswami, J. who sitting by himself came to the conclusion that in view of the Supreme Courts decision, the theory of representation for proceeding against joint family property in the hands of the sons in execution proceedings so as to make their separated shares liable must now be abandoned. 4. 4. I do not feel called upon to retraverse any previous case law except to say that on 20-4-1951 when the District Judge decided this appeal these decisions clarifying a confused state of case law were not available. I shall only refer to the decision in Venkatangrayana v. Venkata Somaraju, AIR 1937 Mad 610 (FB) (E), on the observations in which Mr. Narayanaswami for respondent 1 has strongly relied in support of his contention that he is entitled to execute this decree against the sons apart from the question of immorality or illegality of consideration, on the ground that the suit was against the manager of the joint family who represented all its members and whose shares, as I understand it, are therefore all liable. That decision also related to a case in which after the father died the sons were brought on record as legal representatives. Venkatasubba Rao, J. at p. 614 specifically left the point argued before me by Mr. Narayanaswami open in these words : "It was argued that a decree passed against the father alone, though prior to the partition, and necessarily therefore in respect of a pre-partition debt, cannot be executed subsequent to the partition, against the coparcenary property in the hands of the son. As to the soundness of this position, although it is supported by some authority, I entertain considerable doubt and wish to reserve my opinion upon it for the present." This is precisely the point which has now beers concluded by authority which was not available to the courts below. 5. The appeal must succeed and is allowed holding that in the lifetime of the father the sons cannot be impleaded in execution and their separated shares brought to sale in execution and to discharge their fathers pre-partition debts. The liability of the sons to discharge such debts must be determined in independent proceedings. The parties will bear in the circumstances their own costs throughout. Appeal allowed.