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Issues: (i) Whether a decree obtained against the father alone on a pre-partition debt could, after partition, be executed against the share allotted to the son, even where the son had been impleaded in the suit but was later exonerated. (ii) Whether a defendant who was exonerated from the suit as not being a necessary or proper party remained a party to the suit for the purposes of Section 47 of the Code of Civil Procedure.
Issue (i): Whether a decree obtained against the father alone on a pre-partition debt could, after partition, be executed against the share allotted to the son, even where the son had been impleaded in the suit but was later exonerated.
Analysis: A son remains liable under Hindu law for the father's antecedent debts that are not immoral or illegal, but after partition the father's power to dispose of the son's share comes to an end. Once the family has divided, the son's allotted share is no longer property over which the father has a disposing power within the meaning of Section 60 of the Code of Civil Procedure. The fact that the son had been impleaded in the suit and then exonerated did not create any rational basis for distinguishing his case from that of a son who had never been impleaded. The binding authorities and the Supreme Court's statement of law show that a decree against the father alone cannot be executed against the separated son's share; the creditor's remedy is by a separate and independent suit.
Conclusion: The decree could not be executed against the son's share after partition, notwithstanding the son's prior impleadment and exoneration.
Issue (ii): Whether a defendant who was exonerated from the suit as not being a necessary or proper party remained a party to the suit for the purposes of Section 47 of the Code of Civil Procedure.
Analysis: Section 47 applies only to questions arising between the parties to the suit or their representatives. Where the court has found that a defendant was not a necessary or proper party and has dismissed the suit against him, he is not to be treated as a party to the suit for the purposes of the section. The correct course in such a situation would have been to strike his name off the record. Since the exonerated son was not a party within the meaning of Section 47, the execution question was not one that had to be determined in execution under that provision.
Conclusion: The exonerated son was not a party to the suit within the meaning of Section 47.
Final Conclusion: The order of the courts below was set aside, and the attached properties allotted to the son were held not liable in execution of the decree against the father.
Ratio Decidendi: After partition, the father's power over the son's share ends, so a decree against the father alone cannot be executed against the son's allotted property, and a defendant dismissed as not being a necessary or proper party is not a party to the suit for Section 47 purposes.
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