L. Rath, J.@mdashA petition filed by the Appellant under Order 21 Rule 58, Code of Civil Procedure, having been partly rejected, the Appellant has approached this Court for relief. Respondent No. 1 obtained a money decree against Respondent No. 2 for Rs. 15,188.50 and put the decree into execution, in course of which the property in dispute consisting of lot Nos. 1 and 2 were sought to be attached and proceeded against. The Appellant, who is the mother of Respondent No. 2 filed objection under Order 21, Rule 58, CPC before the executing Court stating that the property is the residential building constructed by her late husband and is the joint family property of herself, three other sons apart from the Respondent No. 2, and three daughters and was not liable to be attached in execution of a personal decree obtained against the Respondent No. 2. The petition was resisted by Respondent No. 1 contending that there had been a previous partition in the family allotting specific portions of the building to the members of the family and that the Respondent No. 2 having got specific property in the lot Nos. 1 and 2, the execution can proceed. The harned Addl. Subordinate Judge, Balasore came to the conclusion of there having been no previous partition and that the property was joint family property, and directed release of lot No. 2 from attachment but maintained the attachment in respect of lot No. 1. In coming to such conclusion the Court was of the view that since the valuation of the property was much more, it was not proper that the entire property should continue under attachment and it was expedient in the interest of justice for only lot No. 1 to be proceeded against but lot No. 2 should be released from attachment.
2. The Respondents have not appeared to contest the appeal inspite of notice.
3. Mr. S.S. Rao, learned Counsel for the Appellant raises the sole contention that the property being admittedly joint family property with each member having share therein, it is not liable to attachment in an execution proceeding in respect of a personal decree against one of the members of a joint family. The objection is well taken since in a joint family property the shares of each member of the joint family is indefinite and each parcel of the property is owned and possessed by each member. Considering the question
4. Since the decree-holder can proceed alone against the J. Dr. for satisfaction of the decree against him, the only remedy available tonic in respect of the joint family property of the J. Dr. is to obtain, if at all, a sale of the share, of the J. Dr. in the property and then sue for partition, and attachment of at all, may be effected only in respect of such share of the property, but while such shire may be put to sale no specific part of the joint family property can be put to sale in the, execution proceeding.
5. In that view of the matter the order passed by the learned Addl. Subordinate Judge is not sustainable and is set aside. The appeal is allowed with costs. Hearing fee is assessed at Rs. 300/-.
Misc. appeal allowed.
