Judgment Raj Kishore Prasad, J. 1. This is an appeal by the plaintiffs from the judgment of the Additional Subordinate Judge, Bhagalpur, decreeing their suit for partition, but allowing them only one-third of 2 annas 8 pies share instead of 8 annas share, as claimed by them, in the lands described in Schedule 1(a) of the plaint. 2. The material facts for the decision of the points raised in the present appeal are these: The plaintiffs brought a money suit against Balgobind Dass, his brother Badri Dass; his two sons Uchitlal Dass and Ugramohan Dass and several others, with whom we are not concerned. A compromise decree was passed (vide. Ext. K) in favour of the plaintiffs against only Bulgobind (defendant No. 1 of that suit), and the plaintiffs suit against the other defendants, including the two sons of Balgobind was dismissed. In execution of that decree, they purchased 8 annas interest in the lands described in Schedule 1 of the plaint on 12-8-39, and subsequently they also got delivery of possession over the same. But at that stage an application was made on behalf of the decree-holder, namely, the present plaintiff No. 1 appellant, under Order 21, Rule 97 of the Code of Civil Procedure, complaining resistance by the judgment-debtor, In this proceeding the cousins and nephews of Balgobind, including Bataso, widow of Balgobinds brother Gopi Dass, filed an application alleging, inter alia, that by virtue of a private partition said to have taken place in 1927, the disputed properties had been allotted to their share. The application of the decree-holder plain-tiff No. 1 under Order 21, Rule 97 of the Code was allowed on 27-7-40 (Ext. 6). Thereafter, plaintiff No. 1 was put into possession. The present suit for partition was then brought by the plaintiffs, who are father and son, against the sons of Balgobind, who was then dead, and the other persons of the family. 3. There is no dispute that there was one Ja-wahir Dass, who had two sons, Ramdeyal Dass and Bhujangi Dass. Ramdeyal had three sons, namely, Balgobind, Badri and Gopi, husband of Bataso. Bhujangi had also sons and grandsons, but it is not necessary to state their names, as they are not material. It is further admitted that Ramdeyal had 8 annas share in the properties belonging to the joint family of both the brothers, Ramdeyal and Bhujangi. 4. Ramdeyal had three sons, namely, Balgobind, Badri and Gopi, husband of Bataso. Bhujangi had also sons and grandsons, but it is not necessary to state their names, as they are not material. It is further admitted that Ramdeyal had 8 annas share in the properties belonging to the joint family of both the brothers, Ramdeyal and Bhujangi. 4. The only controversy between the parties was as to whether the plaintiffs got 8 annas share, including the share of the sons, or they got only the right, title and interest of Balgobind and nothing more. The learned Additional Subordinate Judge has considered these questions and heid that the plaintiffs were entitled only to the right, title and interest held by Balgobind which was to the extent of one-third of 2 annas 8 pies out of 8 annas of Ramdeyal. Accordingly, the plaintiffs suit for partition was decreed to that extent only. 5. It was contended by Mr. J. C. Sinha, who appeared for the appellants, that Order 21 Rule 103 of the Code was a bar as far as Bataso (defendant No. 11), widow of Gopi Dass, brother of Balgobind, is concerned, because, it was argued, she made an application, as will appear from Ext. 6, and her claim was rejected and she did not bring arty suit within the statutory period of limitation under Order 21, Rule 103 of the Code. It was, therefore, urged that the share of Gopi Dass which has come to Bataso, should come to the plaintiffs and not to Gopis widow, Bataso. I do not think there is any substance in this contention. In the first place, this bar under Order 21, Rule 103, was not pleaded specifically in the plaint, and, therefore, Bataso (defendant No. 11) had no opportunity to meet this case at all. In the second place, this question was not put into issues, and, therefore, we do not find any consideration of this objection in the judgment under appeal. In the third place, this question was not taken even in the memorandum of appeal to this Court. Mr. Sinha, however, argued that in spite of these omissions, as it was purely a question of law, he was entitled to raise it in this Court. Even if this plea be considered on its merits, I do not think there is any substance in it. As will appear from Ext. Mr. Sinha, however, argued that in spite of these omissions, as it was purely a question of law, he was entitled to raise it in this Court. Even if this plea be considered on its merits, I do not think there is any substance in it. As will appear from Ext. 6, the judgment of the miscellaneous case under Order 21, Rule 97 of the Code, the objection inter alia of Bataso as also of the cousins of Balgobind, was that there was a private partition, by virtue of which Balgobind got no share. This claim of Bataso and her other partners was rejected as untrue. In the present suit she is not making any such claim, and, in these circumstances, I cannot understand how it can be held that she was not entitled even to the share of her husband, Gopi Dass. In this view of the matter, I would reject the first contention of Mr. Sinha and hold that the plaintiffs are not entitled to get the share of Gopi Dass, which has been inherited by his widow, Bataso. 6. The second contention raised by Mr. Sinha was that as the plaintiffs have got a decree against the father, Balgobind Dass, his sons, under the doctrine of pious obligation, were bound to pay the decree, and, therefore, even though these sons who were parties to the suit, to which Balgobind was also a party, were dismissed from the action, their interest also passed by the same in the execution of the decree although against the father only. In support of his contention he relied upon a Bench decision of this court in Manrup Mandal V/s. Badri Sao, AIR 1942 Pat 383, and on a decision of the Supreme Court in Sidheshwar Mukherjee V/s. Bhubneshwar Prasad, AIR 1953 SC 487 . He further submitted that in view of the decision of the Supreme Court just mentioned the Division Bench decisions of this Court in Deonarain Singh V/s. Bibi Khatoon, ILR 27 Pat 43 : (AIR 1949 Pat 401), and Prahlad Das V/s. Dasarathi Satpathi, ILR 18 Pat 783 : (AIR 1940 Pat 117), require reconsideration. The reason advanced by Mr. He further submitted that in view of the decision of the Supreme Court just mentioned the Division Bench decisions of this Court in Deonarain Singh V/s. Bibi Khatoon, ILR 27 Pat 43 : (AIR 1949 Pat 401), and Prahlad Das V/s. Dasarathi Satpathi, ILR 18 Pat 783 : (AIR 1940 Pat 117), require reconsideration. The reason advanced by Mr. Sinha why these two Division Bench cases required reconsideration was that they were decided on the basis of the doctrine of representation, but in the Supreme Court it was held that the father need not be the karta of the family, and even if he is a junior coparcener of the family, a decree passed against him will be binding on his sons by virtue of the doctrine of pious obligation. I do not think his contention is supported by the decisions relied upon by him. 7. In the Supreme Court case, the sons were not parties to the suit, and they were held not liable by the High Court on the ground that their father was not the karta. This view was reversed by the Supreme Court, and it was held that the sons were liable to pay the debts of their fattier even though he was a junior member of the coparcenery, provided the debt was not an immoral one. 8. Similarly, in the Patna case relied upon by Mr. Sinha, one Rameshwar Mandal, the father, alone was recorded in the landlords sherista as representing the holding as its tenant, and, a rent decree was obtained only against him in a rent suit to which his sons were not parties and which was instituted against him alone. Fazl Ali, J. (as he then was), and with whom Harries, C. J. agreed, stated in express terms that it was unnecessary for him to express any final opinion on the question whether the decree which was passed against Rameshwar Mandal, the recorded tenant, and father, as the karta of the family, was binding on his sons. Fazl Ali, J. (as he then was), and with whom Harries, C. J. agreed, stated in express terms that it was unnecessary for him to express any final opinion on the question whether the decree which was passed against Rameshwar Mandal, the recorded tenant, and father, as the karta of the family, was binding on his sons. Their Lordships decided the appeal before them on the ground that because Rameshwar Mandal alone was recorded in the landlords sherista as the tenant of the holding, which was the subject-matter of the rent suit, he represented the entire holding of the family, and, as such, the decree passed against him was a rent decree and not a money decree, and, therefore, it was binding on the sons, and, the entire holding of the family must be deemed to be sold. These two decisions, therefore, do not at all support the contention of Mr. Sinha that even when the sons are dismissed from an action and a decree is passed only against their father, not as karta or representing his sons, they would be liable for the decree against the father on the doctrine of pious obligation. 9. On the other hand, the other two Bench decisions of this Court, namely, ILR 27 Pat 43 : (AIR 1949 Pat 401) and ILR 18 Pat 783 : (AIR 1940 Pat 117), are more to the point, and, I do not think they are in any way in conflict with the decision of the Supreme Court. 10. 9. On the other hand, the other two Bench decisions of this Court, namely, ILR 27 Pat 43 : (AIR 1949 Pat 401) and ILR 18 Pat 783 : (AIR 1940 Pat 117), are more to the point, and, I do not think they are in any way in conflict with the decision of the Supreme Court. 10. In Prahlad Das, ILR 18 Pat 783 : (AIR 1940 Pat 117), it was held that where a creditor of a Hindu debtor wants to enforce the pious obligation of his sons to pay his debts, the debt not being illegal or immoral, and impleads the sons also in the suit, but the Court, rightly or wrongly, refuses to pass a decree against the sons and passes a decree against the father only, the decree cannot be said to have been obtained against the father both in his individual capacity and also as representing the sons, and such a decree against the father, not being a decree against the sons, cannot be executed against them, not because they were not under a pious obligation to pay the debt of their father but because the procedure of enforcing their liability having been adopted, the Court had refused to enforce it. 11. Similarly, in ILR 27 Pat 43 : (AIR 1949 Pat 401), it was held that where a decree was obtained against a father, his sons and grandsons, but in the execution proceeding some of the sons and the grandsons were not made par-ties, the father did not represent the sons and the grandsons, who were not made parties to the execution proceeding, and, that they were not under the pious obligation to pay off the fathers debt, and, therefore, their share in the properties sold in execution of the decree did not pass. 12. The Privy Council also in Raja Ram V/s. Raja Baksh Singh, 19 Pat LT 1 : (AIR 1938 PC 7), has taken a similar view. In that case, two persons, B and C, members of a joint Hindu family governed by the Mitakshara, executed a mortgage deed in favour of the appellant before them. B having died the appellant brought a suit to enforce the mortgage impleading in addition to C and other persons, Bs sons and grandsons. In that case, two persons, B and C, members of a joint Hindu family governed by the Mitakshara, executed a mortgage deed in favour of the appellant before them. B having died the appellant brought a suit to enforce the mortgage impleading in addition to C and other persons, Bs sons and grandsons. The suit was decreed against C personally and against the estate of B in the hands of his sons under Rule 1, Order 20 and Rule 6, Order 9, Schedule I, Civil Procedure Code, but it was dismissed with costs against the grandsons of B. The appellant applied for execution not only against C and the sons of B but also against Bs grandsons as also against their interest in the family property. On these facts it was held by the Privy Council that the grandsons having been dismissed from the suit could not be made liable under the decree. 13. In my judgment, it seems well settled from the decisions just mentioned that if to a suit a father and his sons are also made parties, but the decree is passed only against the father and the suit is dismissed against his sons, then in execution of the decree against the father only the interest of the father passes, and the interest of the sons does not pass, because, in such a case, the sons were not liable, not because they were not under a pious obligation to pay the debt of the father, but because the procedure to enforce their liability having been adopted, the Court had refused to make them liable and pass a decree against them also. When the father and his sons are all sued in their individual capacities, and a decree is passed only against the father, and, the suit is dismissed against the sons. It cannot be said that the decree has been passed against the Father in his representative capacity as representing his sons also, and, therefore, they would also be liable for it although they have been dismissed from the action. 14. In the instant case, similar was the situation. A suit was no doubt brought against Bal-gobind and his two sons, but the suit was decreed on compromise against only Balgobind, and, it was dismissed specifically against his sons. 14. In the instant case, similar was the situation. A suit was no doubt brought against Bal-gobind and his two sons, but the suit was decreed on compromise against only Balgobind, and, it was dismissed specifically against his sons. In these circumstances, by their purchase in execution of the decree against Balgobind, the plaintiffs purchased only the right, title and interest of Balgobind, and nothing more, and, certainly, not the right, title and interest of the sons of Balgobind also. It was conceded by Mr. Sinha, if the above view was the correct position in law, then the learned Additional Subordinate Judge is right in holding that the plaintiffs share was not 8 annas, as claimed by them, but only one-third of 2 annas 8 pies out of the 8 annas of Ramdeyal Dass, the father of Balgobind Dass. 15. In the result, the appeal fails and is dismissed with costs.