Judgment :- 1. These Civil Miscellaneous Second Appeal and Civil Revision Petition arise out of a petition filed by the defendants 4,9,14 and 13 in O. S.254 of 1942 on the file of the District Munsiff's Court, Badagara to set aside a sale held in execution of the decree there. The petition was dismissed by the executing court but allowed by the District Judge of North Malabar in appeal by the petitioners. The second appeal is accordingly taken by both the auction-purchaser and the assignee-decree-holder. The revision petition is directed against the same order and is filed only as an alternative. 2. The decree in O.S. 254 of 1942 was passed on 16-8-1943 in favour of five members of a Muslim Marumakkathayam tarwad against the karnavan and all the other members arrayed as defendants, for arrears of maintenance due to them. Subsequent to the passing of this decree, a suit O.S 98 of 1946 on the file of the Tellicherry Sub Court was instituted by the 4th defendant in the maintenance suit (one of the respondents herein) and another, for partition of their shares in the tarwad properties. This partition suit ended in a preliminary decree dated 7-7-1949 and is now pending stage of final decree. The court sale in question was of an item of tarwad property covered by the preliminary decree in the partition suit and was conducted on basis of an execution application dated 10-6-1952 filed by the assignee-decree-holder, 2nd appellant herein and making the karnavan and the Receiver appointed in the partition suit, alone as respondents thereto. The sale took place on 9-6-1953 and was confirmed on 13-7-1953. The petition herein to set aside the sale was filed more than a month thereafter on 26-8-1953 under Order XXI, R.90 C. P C. and S.18 of the Limitation Act. There were various grounds relied on by the petitioners but we are concerned with the only two grounds of illegality which found favour with the lower appellate Court, viz. (1) that the sale was held in contravention of the provisions of S.10 of the Mappilla Marumakkathayam Act (Madras Act XVII of 1939), and (ii) that there was neither impleading of nor issue of notice to the members of the tarwad in execution, though they were co-sharers in the property sold along with the karnavan and were also parties-defendants. Mr. (1) that the sale was held in contravention of the provisions of S.10 of the Mappilla Marumakkathayam Act (Madras Act XVII of 1939), and (ii) that there was neither impleading of nor issue of notice to the members of the tarwad in execution, though they were co-sharers in the property sold along with the karnavan and were also parties-defendants. Mr. Kuttikrishna Menon, learned counsel for the appellants has attacked before me the conclusion of the court below on both the grounds. I will take them up in their order. 3. S.10 of the Mappilla Marumakkathayam Act runs as follows: "No immovable property of the tarwad shall be liable to attachment or sale in execution of any decree obtained by an anandravan for maintenance, until after the decree-holder has exhausted his remedies, if any, against the personal property of the karnavan or the income of the tarwad property". Learned counsel contends that this section cannot be said to be mandatory so as to invalidate altogether a sale held in contravention thereof. Alternatively he says that the section must be deemed to have been substantially complied with, when the original decree-holders applied for in the partition suit (Receiver Court) and obtained directions: "to execute the decree in the usual course, because the Receiver is not now in possession to pay and the question does not arise whether he should be asked to discharge the decree". Vide Ext. B12 order dated 26-8-1948. Now the object of S.10 is clearly to avoid all process against the corpus of the immovable properties as far as possible, in execution of a maintenance decree in favour of a junior member of the tarwad. The direction is accordingly given to proceed against the income and also the personal property of karnavan in the first instance. Only on failure to realise the whole or part of the decree amount should execution be sought against immovable properties. Process against the karnavan's personal property is indicated in recognition it would appear, of the personal liability of the karnavan notwithstanding Kunhali Kutty v. Kunha Maryan, I. L. R.46 Mad. 567. So far as the arrears are concerned, in any event, the karnavan can be made personally liable as he has received and appropriated the income of the tarwad properties as karnavan without discharging one of his important duties as such. 567. So far as the arrears are concerned, in any event, the karnavan can be made personally liable as he has received and appropriated the income of the tarwad properties as karnavan without discharging one of his important duties as such. The provision is thus designed for a certain purpose and must accordingly be held to be mandatory in character, any breach of which will make illegal the attachment or sale in execution. Reference may in this connection, be made to the provision in the Civil Courts Act requiring the court to be satisfied that the judgment-debtor under a small cause decree has no personal property to be proceeded against before it issues process against immovable property and such provision has been held to be mandatory. See Kunjipennu v. Parameswara Panicer,1957 K.L.T.174. It is not claimed in this case that the karnavan had no personal property to be proceeded against at all or that the income of the tarwad property sufficient to satisfy the decree, could not be made available in reasonable time. The infringement of S.10 has therefore to be held to he a fatal defect. The alternative ground based on Ext. B12 order is also without substance. For, the direction therein to proceed against the properties in the usual course merely meant that execution could he had to the extent allowed by law and no more. 4. Taking up now the second aspect of illegality as to the failure to make the tarwad members parties-respondents to the execution application which led to the court sale, learned counsel for the appellant says, that the Receiver in the partition suit or alternatively, the karnavan who both were respondents in the execution proceedings could be deemed to have sufficiently represented the rest of the tarwad members for the purpose. In support of the Receiver's representative capacity learned counsel referred to the passage in Mulla's Civil Procedure Code, 12th Edn. at p. 1165. "The Receiver is appointed for the benefit of all concerned; he is the representative of the court and of all parties interested in the litigation, wherein he is appointed". and reliance is placed on Jagat Tarim Dasi v. Naba Gopal, (1907) 34 Cal. 305, 317. But lower down in the same page the learned author takes care to say. "The Receiver is appointed for the benefit of all concerned; he is the representative of the court and of all parties interested in the litigation, wherein he is appointed". and reliance is placed on Jagat Tarim Dasi v. Naba Gopal, (1907) 34 Cal. 305, 317. But lower down in the same page the learned author takes care to say. "Third party plaintiff is not entitled to bring a suit against the Receiver alone ignoring the real owners who are necessary parties to the suit. The Receiver is to be added, and not substituted, as party with leave of the court where the properties in his hands are sought to be affected" and refers to In Md. Kadar Ali v. Gopindabandhu, A. I. R.1946 Cal. 127. The principle is, a Receiver as such does not acquire a title to the property in respect to which he has been appointed Receiver. The property does not vest in him and the ownership remains in the parties to the suit. It is wrong therefore to say that the Receiver could have represented the interests of the members of the tarwad. 5. So far as the karnavan of the tarwad is concerned it may be that he, by himself, could sufficiently represent the entire tarwad if the suit was only for arrears of maintenance (as here) which may be equated to that of an ordinary suit to recover a debt as contrasted with a suit where the prayer is to create a perpetual charge of maintenance on the tarwad properties at a specified rate. And this may be so, notwithstanding all the members of the tarwad were also made parties to the suit at its inception But the question is, could the representative capacity enure for the purpose of execution, after the tarwad had got split up. Learned counsel for the appellants relied upon Venkatanarayana v. Venkata Somaraju, (1937) II M. L. J. 251=1. L. R. (1937) Mad. Learned counsel for the appellants relied upon Venkatanarayana v. Venkata Somaraju, (1937) II M. L. J. 251=1. L. R. (1937) Mad. 880 F. B, in support of the position that if at the time the suit is filed against the manager of the joint family, representing it as such he had the power to represent the family, then the subsequent disruption of the joint family pending suit would not take away from the manager the right to represent the group not only for the purpose of the passing of the decree in the suit but also that of pursuing execution on foot thereof. But all that the learned judges said in that case was that despite the fact that the manager had lost his representative character pendente lite a decree passed against him would bind the entire properties of the joint family. This precise question came up for consideration in the later case Valappil Raman v. Kunhi Kannan Nambiar. (1956) I. M.L.J. 403 & the learned judges said that even if the final decree against the karnavan or manager is binding on all the members of the erstwhile tarwad, still an execution proceeding in which the karnavan alone is made a party will not be binding on the other members. For, "It is one thing to say that a decree is binding and another thing to say that the decree can be enforced in execution proceedings behind the back of the other members of the family". And reliance was placed by the learned judges on Kunhappa Nambiar v. S. Shridevi Kettilamma (1895) I.L. R.18 Mad. 451 and Kunhi Kannan v. Soopi (1908) 18 M. L. J. 132 for the proposition they laid down. It follows, therefore, that the execution sale held without notice to the junior members of the tarwad cannot bind their shares in the property sold. 6. Learned Counsel for the appellants finally pleaded that the setting aside of the execution sale should be limited to the shares of the respondents-petitioners before the executing court and need not be extended to those of the rest of the tarwad members, at least the karnavan. But as we saw, the sale here is wanting in jurisdiction under the first head of illegality and cannot therefore be upheld to any the slightest extent. 7. But as we saw, the sale here is wanting in jurisdiction under the first head of illegality and cannot therefore be upheld to any the slightest extent. 7. The result is that the C. M. S. A. and C. R. P. have both to fail and are therefore dismissed with costs. Advocate's fee one set only.