( 1 ) THE 1st respondent-decree-holder had filed Sp1. CS. No,. 8 of 1962 against Respts. 2 and 3 as well as against the appellants', who are judgment debtors 3 to 6. A decree was passed against judgment debtors 1 and 2 (Respts. 2 and 3) only for recovery of a sum of Rs. 16,031-18 together with future interest and proportionate costs of the suit. The suit as against judgment-debtors 3 to 6 (appellants) came to be dismissed. The decree holder sought to proceed against the shares of the appellants in the properties of the joint family alleging that judgment debtor 1 is the father of judgment-debtors 3 to 6, that the properties sought to be attached are the joint family properties of the judgment-debtors and that the judgment debtors 3 to 6, being the sons of judgment-debtor 1, are liable under the pious obligatiton to discharge the decretal debt and that their shares in the joint family properties are liable to attachment and sale. The judgment debtors 3 to 6 resisted the claim of the decree-holder contending that the claim is barred by res judicata since the suit had been dismissed against them. The execution Court rejected the contentions of judgment-debtors 3 to 6 holding that the shares of the said judgment-debtors in the, joint famliy properties are liable to be proceeded against. That order has been confirmed by the lower appellate Court. The judgment debtors 3 to 6 have filed the present second appeal. ( 2 ) IN the suit it was alleged by the decree holder that the 1st judgment debtor is the father of judgmentrdebtors 3 to 6 that they constitute a joint Hindu family of which the father was the manager, that they were carrying on their famiy business under the name and style of ' Siddeswara oil Mils at Gadag, that all the defendants enjoyed and received the benefit of the dealings with the plaintiff in that suit. Judgment-debtors 3 to 6 in the suit pleaded that the oil mill business is the new and exclusive business of their father and that therefore they were not liable for the suit claim. Judgment-debtors 3 to 6 in the suit pleaded that the oil mill business is the new and exclusive business of their father and that therefore they were not liable for the suit claim. The Court held that the oil mill business was entirely a new business and that the suit claim is binding only on defendants 1 and 2 (judgment-debtors 1 and 2) and not binding on defendants 3 to 6 i. e. , judgment-debtors 3 to 6, that only defendants 1 and 2 are liable for the suit claim, and that the interest of defendants 3 to 6, in the joint family properties cannot be attached. ( 3 ) IT is not the case of the appellants that the debt in question is an avyayaharika de,bt. What is contended by them is that since they were made parties to the suit and as the Court held in that suit that their shares and interest in the joint family properties are not liable for attachment, that it is not now open to the decree-holder to seek to proceed against their shares and interest in the joint family properties in execution of the said decree and that the decree holder's claim is barred by res judicata. The attachment before judgment of the shares of the appellants and their interest in the joint family properties was ordered to be raised in that suit. That was in pursuance of the finding of the Court that the oil mill business is a new business and that the shares and interest of the appellants in the joint family properties are not liable for the suit claim. ( 4 ) MR. Swamy appearing for the appellants has relied on the decision in Raja Ram v. Raja Baksh Singh AIR. 1938 PC. 7. In that case the suit was instituted against sons and grandsons on a mortgage deed executed by the deceased father. The debt was not contracted for any immoral purpose. The suit was decreed only against the sons as legal representatives of the father and it was dismissed as against the grandsons. The plaintiff sought to execute the decree not only against the sons but also against the grandsons snd their interest in the family property. The debt was not contracted for any immoral purpose. The suit was decreed only against the sons as legal representatives of the father and it was dismissed as against the grandsons. The plaintiff sought to execute the decree not only against the sons but also against the grandsons snd their interest in the family property. It was held that since the debt was not contracted for immoral purposes the grandsons were liable to pay the debt to the extent of their interest in the joint family property, that the decree of the trial Court dismissing the suit against the grandsons was erroneous and that the remedy of the plaintiff was to have appealed therefrom. It was therefore held that the suit haying been dismissed against the grandsons, they could not be made liable under the decree. This decision was followed in Prahlad Das v, Dasarathi AIR. 1940 Pat 117. In that case the suit wss brought to enforce a simple mortgage against the mortgagors as well as their sons. The suit was decreed and the mortgage properties were sold in execution of the decree. Since the sale proceeds were insufficient to satisfy the decree, the mortgagee applied for a decree under Or. 34, R. 6, cpc asking for a decree against the mortgagors only and not against their sons. Accordingly, a money decree was passed against the mortgagors only It was held that where the creditor impleads the sons of a Hindu debtor as parties to the suit along with their father, the sons being parties to the suit the father cannot be said to have represented them in the suit. In such a suit if the Court passes 3 decree against the father only, it cannot be said that a decree has been obtained against the father both in his individual capacity and also as representing his sons and that such a decree against the father alone cannot be executed against the sons not because the sons were not under a pious obligation to pay the debt of their father which is neither illegal nor immoral, but because the procedure of enforcing their liability having been adopted the Court refused to enforce it. ( 5 ) MR. Bhatta appearing for the 1st respt relied on the decision in krishnan Naidu v. Somi Naidu ILR. 27 Mad. ( 5 ) MR. Bhatta appearing for the 1st respt relied on the decision in krishnan Naidu v. Somi Naidu ILR. 27 Mad. 243 In that case in a suit on a promissory note executed by the father alone the sons were impleaded on the ground that the debt was incurred for family necessity. The trial Court dismissed the suit. In the appellate Court, the plaintiffs decided not to ask for a decree against the sons who were dismissed from the suit. The appellate court passed a decree against the father only. It was held that the decree holder could proceed to execute the decree against the sons' interest in the family property relying on the decision in Perasami v. Seetharam AIR, 1940 Mad. 544 the secison in Raja Ram v. Raja Baksh Singh was held not to have over-ruled the decision in Feriasami v. Seetharam. The decision of the privy Council was distinguished on the ground that the decree was passed against the father after the sons had been dismissed from the suit, and that the passing of the decree gave to the decree holders a new right which they could enforce against the sons. In that decision, the two decisions of the some Court in Periasami v. Vaidialingam AIR. 1937 Mad. 718 and Doraiswami v. Nagasami AIR. 1929 Mad. 398. were relied on. In Periasami's case (5) the suit was filed against the father and his sons but before judgment was passed the suit was withdrawn as against the sons. It was held that the withdrawal of the suit as against the sons did not exonerate them and that the result of withdrawal was not to bring iinto operation the rule of res judicata embodied in S. 11 CPC but only to entail the statutory penalty enacted in Or. 23, r. 1. that no fresh suit could be instituted against the sons on the same cause of action. In Doraiswami's case (6) it was held that a decree passed against a father personally after the sons had been exonerated could be executed against the sons' interest in the family property in respect of the decree debt passed against the father. ( 6 ) THE Madras decisions have been considered in Maha Nilvani v. Bindeshri Prasad AIR. 1952 All. 337. ( 6 ) THE Madras decisions have been considered in Maha Nilvani v. Bindeshri Prasad AIR. 1952 All. 337. In that case the suit was instituted on a simple mortgage deed against the mortgagor as well as his sons. It was found that the document was not proved to have been duly attested, since the deed contained a personal covenant tp pay the amount, a simple money decree was passed against the mortgagor only. The suit was dismissed against the sons. It was held that since the sons were parties to the suit along with their father, the father could not be deemed to represent his sons and since the simple money decree was passed against the father alone and the suit was dismissed aginst the sons, the decree could not be executed against the interest of the sons in the joint family property. The derisions in Periasmi v Seetharama. Krishnan Naidu v. Somi Naidu and Periasami v. Vaidialingam were distinguished. ( 7 ) IN Kanchan v. Babu Bai AIR. 1967 Raj. 184. the suit by the creditor had been filed against the father as well as his sons but the suit was. withdrawn against the sops for the reason that the decree passed against the father would be binding on the sons so far as the joint Hindu family property was concerned. The decision in Krishnan Naidu's case (3) was followed. It was held that the liability imposed on the sons under the doctrine of pious obigation cannot be evaded except on the ground that the Court has refused to recognise the right of the creditor to execute his decree even against the interests of the sons in the joint famiy property in the main suit brought against the sops. In case there is an express refusal by the Court, that would be conclusive with regard to the liability of the sons. The result may also be implied by invoking the doctrine of constructive res judicata. But to a case in which the creditor has withdrawn the suit against the sons, the doctrine of res judicata would not be applicable and the decree obtained against the father could be exeecuted against the interest of the father and his sons. Since the suit against the sons was withdrawn in that case, it was held that the doctrine of res judicala woud not apply. Since the suit against the sons was withdrawn in that case, it was held that the doctrine of res judicala woud not apply. ( 8 ) IN Periasami's case (4) a simple money decree was obtained against the father alone who constituted a joint family with his sons. Thereafter he died before the decree could be executed. The decree holde was unsuccessful in his attempt 'to execute the decree against the family property in the possession of the sons. Thereupon he instituted a suit against the sons and some other members of the family. Before the High Court, the substantial question raised was whether the cause of action for the second suit should be taken to have arisep on the date of the decree against the father in the earlier suit. It was held that independently of the debt arising from the original transaction, the decree against the father by its own force created a debt as against him, which his sons were under an obligation to discharge unless they show that such debt was illegal or immoral. The second suit was held to be within the period of limitation on this account. There was no questipn of enforcement of a simple money decree against the sons in the joint family proerty by means of execution proceedings in that case. Moreover, the first suit had been filed against the father only and the sons had not been impleaded. It was therefore not a case of the suit having been dismissed against the sons but decreed only against the father. In Krishnan Naidu's case (3), the suit must be deemed to have been actually with drwn at the appellate stage so far as the sons were concerned. The same was the position of the sons in Periasami's case (5 ). It was because of the withdrawal of the suit against the sons that it could not be deemed that the sons were exonerated and the rule of res judicata embodied in S. 11 of CPC was held inapplicable. In such circumstances there would be no adjudication in the suit that the sons are not liable in respect of the decree debt. I am therefore in respectful agreement with the view expressed in Maha Nirvani's case (7) and Prahald Das's case (2 ). ( 9 ) MR. Bhatta relied on the decisions in ' Siddeshwar v. Bhubeneswar air. 1963 SC. 487. I am therefore in respectful agreement with the view expressed in Maha Nirvani's case (7) and Prahald Das's case (2 ). ( 9 ) MR. Bhatta relied on the decisions in ' Siddeshwar v. Bhubeneswar air. 1963 SC. 487. and Jakati v. Borkarair 1959 SC. 38. In Siddeshwar's case (9) it has been held that if the debts have been contracted by the father and they are not immoral or irreligious the interest of the sons in the coparcenary property can always be made liable for such debts and that the sons need not be made parties in the suit against the father op the basie of a promissory note executed by him. It was further held that the obligation of the son is not a personal obligation but it is one confined to the assets received by the son as his share of the joint family property or to his interest in the same. It was further held that even after partition the sons can be made liable for the pre-partition debts of the father although the father could have no longer any right of alienation with regard to the separated shares of the sons. In Jakati v'. Borkar (10) it has 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 ablained a decree against the father, to seize the erstwhile coparcenary property remains unaffected and undiminished be cause of the pious obligation of the sons. In both the above-said two decisions the suit was filed only against the father and the sons had not been impleaded. ( 10 ) MR. SWAMY relied on the decision in Mootu Vijaya Swamy v, Katama natchar 2 MIA. 50. . In that case, in the 1st suit which was for recovery of zamindari the question of genuineness of the alleged testamentary paper relied on in the second suit was raised in the plaint. The Judicial Committee of the Privy Council found that the zamindari was self-acquired property and descended to the heirs and was capable of being devised. It therefore became material to determine the question with regard to the alleged testamentary paper. The Judicial Committee of the Privy Council found that the zamindari was self-acquired property and descended to the heirs and was capable of being devised. It therefore became material to determine the question with regard to the alleged testamentary paper. But the appellant contended that the instrument was not testamentary and was never intended to have the effect of devising the property. He subsequently instituted a suit founded on an allegation contradicting his earlier stand and insisting upon the said document having been a valid will and testamentary It was observed that when a plaintiff claims an estate and the defendant being in possession resisted that claim, he is bound to resist it upon all the grounds that is possible for him according to his knowledge then to bring forward and that the appellant must be precluded from setting up such a case. This decision was followed in Doorga Persad Singh v. Doorga Gonwari ILR. 4 Cal, 190. . In that case, a Hindu widow obtained a decree for possession of certain lands to which she claimed to be entitled as mother and heiress of her deceased son. One of the defendants to that suit subsequently brought a suit against the widow alleging that he and not the widow had become entitled to the property an the death of the widow's son under Kulachar or family custom, which excluded female heirs, and gave him a preferential right among male heirs and thereby sought tp recover possession of the same lands from her. It was held that the decision in the fomer suit that the widow was entitled to the land as mother and heiress to the deceased son was conclusive against the present plaintiff and the party to that suit, and that the plaintiff was barred by the adjudication from recpvering possession from her on the ground that she was not the heiress and that he is entitled to the property upon the death of her son. ( 11 ) IN the present case it is true that the question of pious obligation did not arise in the suit, but that was a question which might and ought to have been urged by the decree-holder in his suit as the basis of the liability of the sons. ( 11 ) IN the present case it is true that the question of pious obligation did not arise in the suit, but that was a question which might and ought to have been urged by the decree-holder in his suit as the basis of the liability of the sons. Since he did not assert that claim it must be held that it is barred by constructive res judicata, under Explanation 4 to S. 11 of the Code of Civil Procedure. ( 12 ) THEREFORE, the decree-holder is not entitled to attach and sell the interests of the sons in the joint family properties. This appeal is therefore allowed and the orders of the lower Courts are set aside. Parties shall bear their own costs in this appeal. --- *** --- .