( 1 ) THE appellant is the third detendant; respondents 1 to 3 are the plaintiffs; respondents 5 to 7 are defendants 2, 4 and 5 respectively. The suit was filed lor a declaration that the plaintiffs have a 3/4th share in the suit property, a house CTS. No. 476 situated in Shahapur, Belgaum and that the auction sale held in favour of defendants 4 and 5 and the decree obtained by the second ddefendant against the father of the plaintiffs was brought about by fraud and collusion and that the same was not binding on them and also lor partition and possession of their share. The trial Court dismissed the suit. But the appellate Court reversed the decree of the trial court and decreed the suit. The auction-purchaser-defendant-3 has come up in appeal. ( 2 ) THE suit property belonged to Krishna Kulkarni the paternal grand father of the plaintiffs. He died leaving his widow (second defendant ). The first defendant is the father of the plaintiffs. Defendants 4 and 5 were the original vendees of the suit property from defendant-1 and attorned as tenants under defendant-3. Defendant-2 filed RS. No. 42/45 against the plaintiffs father, defendant-1 for maintenance. The suit was decreed on 15-1-1946 granting Rs. 280 per annum as maintenance and a charge was created on the suit property under the decree. The plaintiffs filed a partition suit against defendant-1 on 1-7-1946, and that suit was subsequently numbered as Spl. Suit No. 177/1949. In that suit there was a decree on 30th March 1955. The second defendant was also a party to the partition suit. The terms of the earlier decree in her favour including the charge were confirmed, and defendant-1 as well as plaintiffs were made liable to pay the maintenance amount. ( 3 ) IN the meanwhile, the second defendant executed the decree obtained in CS. No. 42/1944 in Darkast No. 621/1955 against the first defendant. In that execution proceeding, the plaintiffs applied for being impleaded as parties as per Ex. 78. On that application, the Court passed the order: "stranger's application. Keep it for orders". Subsequently, the execution was closed, since on 13-7-1960 the amount claimed in execution application was deposited and the decree holder reported satisfaction. Thereafter, the decree-holder filed a second execution application No. 288/ 1959 against the first defendant claiming arrears of maintenance from 1958 to 1959. 78. On that application, the Court passed the order: "stranger's application. Keep it for orders". Subsequently, the execution was closed, since on 13-7-1960 the amount claimed in execution application was deposited and the decree holder reported satisfaction. Thereafter, the decree-holder filed a second execution application No. 288/ 1959 against the first defendant claiming arrears of maintenance from 1958 to 1959. The suit house was brought to sale, and the third defendant purchased it on 27-6-1960. Thereafter, the present suit was filed on 14-6-1961 challenging the sale and for partition. ( 4 ) THE lower appellate Court held that the decree in favour of the second defendant warding maintenance was not in the nature of a debt covered by the doctrine of pious obligation, but the liability was on the basis of the decree to which the plaintiffs were constructively parties, and that as a result of partition after the decree, they must be deemed to be parties to the same in view of the arrangements made in the decree passed in the partition suit. It is also held that since there was a partition, the father of the plaintiffs could not i epresent the interest of the separated sons and since the plaintiffs were not impleaded to the execution proceedings, their interest in the property could not be attached and sold, and that the sale in favour of the third defendant conveyed only the interest of the first defendant in the suit property. ( 5 ) IT was held in Yamnabai v. Nababhai Sadanand, 12 Bom. L. R. 1075, that "under hindu Law, a widow's right to maintenance can only become a charge upon any definite portion of an undivided family estate when it has been made so by a decree of a Court or by an express agreement, and that otherwise it is subject like many other rights founded in pious obligation and can be defeated by sheer necessity'. ( 6 ) FOLLOWING the above decision it has been held in Baghynath ambardas Shet v. Dwarkabai Jagannath Shet, AIR 1925 Mad 751, that the arrears of maintenance due and payable to a Hindu wife by her husband is a debt within the meaning of the Hindu Law which has regard only to undischarged obligations and to which the distinction between debts and damages was foreign. ( 7 ) IN view of these decisions it was fairly conceded by Shri Mandagi, learned Counsel appearing on behalf of the respondents, that the claim for arrears of maintenance can be considered to be a debt for the purpose of the doctrine of pious obligation under the Hindu Law. ( 8 ) IT has ben held in Jakati v. S. M. Barkar, AIR 1959 SC 282 , that unless the son succeeds in proving that the decree obtained against his father was based on a debt which was for an immoral or illegal purpose, the creditor's right of seizing in execution of his decree the whole coparcenary property including the son's share remains unaffected, because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in sat;sfaction of the judgment obtained against the father alone. It has also been held that even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition, the right of the judgment-creditor, who has obtained a decree against the father, to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. Another principle of Hindu Law is that in a coparcenary family the decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit. The result of the partition in a joint family pending the execution proceeding is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore, attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition. That was a case in which the payment order was passed before the partition, but the attachment was made, and the sale proclamation was issued before the suit for partition was filed and the sale took place of the whole property without any protest or challenge by the sons and without any notice to the Collector or the judgment-creditor of the filing of the suit for partition. It was further held that whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares, the points for decision are the same viz. , the nature of the debts and liability of the sons under Hindu Law and these are the determining factors in both the cases i. e. , the sons being parties to the execution proceedings or their suit challenging the sale of their shares. Therefore, it is clear that if there had been a partition between plaintiffs and defendant-1 only, the Court sale in this case in favour of the third defendant would be binding on the plaintiffs, unless they established that the decretal debt was for an illegal or immoral purpose, since the decree was for the payment of maintenance to the mother of the first defendant and the plaintiffs would be bound by the decree under the doctrine of pious obligation. But it is contended on behalf of the plaintiffs that since the second defendant was herself a party to the subsequent partition suit, the decree obtained by her earlier, got merged in the decree passed in the partition suit; that in any case the interest of the plaintiffs was not affected by the execution sale as they were not impleaded in the execution proceeding and that therefore, the sale in the execution is not binding on the plantiff. The trial Court passed a decree in the partition suit on 30th March 1955. Some of the alienees filed an appeal before this Court and the decree of the trial Court was confirmed with modifications which are not material for the purpose of this case, since the second defendant was not made a party in that appeal. Hence, as far as the plaintiffs and the second defendant are concerned, the decree of the trial Court became conclusive on 30th March 1955. The question to be considered therefore is, whether the execution sale conveyed the interest of the plaintiffs also to the purchaser. ( 9 ) EX. 75 is the decree in the partition suit. The relevant para of the decree reads as follows :"defendant-2 should continue to get her maintenance of Rs. 280 per year on the terms stated in the decree in suit No. 42 of 1944 from plaintiffs and defendant No. 1. ( 9 ) EX. 75 is the decree in the partition suit. The relevant para of the decree reads as follows :"defendant-2 should continue to get her maintenance of Rs. 280 per year on the terms stated in the decree in suit No. 42 of 1944 from plaintiffs and defendant No. 1. " ( 10 ) THE plaintiffs, defendant-1 and the second defendant in the partition suit are respectively the plaintiff, defendant-1 and defendant-2 in the present suit. ( 11 ) IN Jagadesan v. Saraswathi Ammal, AIR 1962 Mad 174 FB, the Full Bench has observed as follows:"in respect of a liability incurred by a Hindu father a creditor can file a suit on the basis of the contract; to such a suit he can also implead the sons in order to get an adjudication that the liability is such that the sons would be bound to pay on the principle of pious obligation. To implead the sons or not, is entirely at the option of the creditor. If he does not implead, it does not mean that the decree obtained against the father alone is not executable against the son's share in the family property. That depends upon the quality or nature of the debt; and not on the fact of the sons being made a party or not. If they are not parties they can raise the question as to the binding nature of the debt whenever their rights are sought to be infringed. If they are made parties, they should raise the question of their liability in the suit itself. "if they do not do so, or if they raise the plea and it is rejected it would mean that they are liable and the question cannot be raised again. Per contra if they are impleaded as parties to the suit against their father and the suit against them is dismissed, it would mean that the Court had decided in their favour and against the creditor on the question of their liability. The principle is therefore one of mere res judicata and not on the effectiveness of the representation of the sons by their father in the suit. The principle is therefore one of mere res judicata and not on the effectiveness of the representation of the sons by their father in the suit. "it was observed as follows in Siddeshwar v. Bhubneshwar, AIR 1953 SC 487 :"holding ai we do, that the sons were liable in this case to discharge the decretal debt due bv their father, the further question arises as to how this liability could he enforced ? Could the interest of the sons in the joint property be attached and sold without making the sons parties to the suit and the execution proceedings? The point does not seem to us to present much difficulty. Strictly speaking the sons could not be said to be necessary parties to the money suit which was instituted by the creditor against the father on the basis of a promissory note. If a decree was passed against the father and the sons jointlv. the latter would have been personally liable for the debt and the decree could have been executed against their separate or personal propertv as well. No doubt the sons could have been made parties to the suit in order that the debts of their father might be decided in their presence. "this decision was following in R. Krishnaswami Iyengar v. Thiagaraja pillai, AIR 1971 Mad 303 . In that case a decree was obtained aeainst a father and his son in respect of the father's debt and execution was taken against the father alone. "this decision was following in R. Krishnaswami Iyengar v. Thiagaraja pillai, AIR 1971 Mad 303 . In that case a decree was obtained aeainst a father and his son in respect of the father's debt and execution was taken against the father alone. The observations in Jagadesan's case (4) were also referred to and it was observed that the decision emphasises the independent character of the son's liability under the doctrine of pious obligation It was held that when the liability of a son arising under the doctrine of pious obligation gets crystallised into a decree of Court, it is no longer permissible to look to the original obligation which is merged m thp new obligation created bv the decrre, and that thp relationship between the father and son is thereafter irrelevant that the claim based on pious obligation having become the subject of a decree cannot be relied upon to make the son liable for the decree against the father and that a single obligation of the son cannot be made the subject of diverse execution proceedings one against the father and one aeainst the son, that the only method of enforcing the claim afainst the son in such a case is to execute the decree against him. and that in such a case, even if thp Court purports to sell the entirety of the interest it cannot sell more than the law allows. It was further observed that the purpose of obtaining the decree against the son was to fix his liability in the action and make his interest m the joint family liable by a decree against him for the debt of his father without leaving the matter open for later proceedings. ( 12 ) IN the present case the second defendant could execute her decree against the first defendant alone and in the sale in such execution the interests cf the plaintiffs would also pass subject to the question of the binding nature being questioned in a suit subsequently filed by the plaintiffs. This was the position prior to the passing of the decree in the partition suit. This was the position prior to the passing of the decree in the partition suit. The liability of the plaintiffs under the doctrine of pious obligation got crystallised in the decree obtained by the second defendant in the partition suit Hence, after the partition decree was passed the interests of the plaintiffs could be proceeded against only by the execution of the decree against the plaintiffs. It is urged on behalf of the appellant that the above said decisions apply only if the creditor files a suit against the father and that they do not apply to the case of a decree passed in a partition suit. But in a partition suit every member of the joint family is in the position of a plaintiff. Hence the principle of those decisions applies to the partition decree in this rase. Since the plaintiffs were not made parties to the execution proceedings, the sale held subsequent to the date of the partition decree does not affect the interest of the plaintiffs in the property sold. ( 13 ) IN this view of the matter it is not necessary to consider the question of merger of the maintenance decree in the partition decree. ( 14 ) IT has therefore to be held that the plaintiffs are entitled to succeed. The decree of the lower appellate Court is therefore confirmed though not for the reasons stated by it. ( 15 ) THE appeal is therefore dismissed with costs. --- *** --- .