THIMMAPPA Vs. BSUBBA RAO

JUDGEMENT

(1.) The suit out of which this Second Appearl arises has been filed by plaintiffs for partition and possession of their three-fourth thereof from the defendants.

(2.) The facts which are necessary to state for the purpose of this appeal are as follows : The suit property is Survey No. 45/3, measuring 5 acres and 9 guntas, assessed at Rs. 6-8-0. This property originally belonged to one Venkatappa who had mortgaged the same with possession to one Lakshminaranappa. The mortgagee brought a suit, being O. S. No. 449 of 39-40 to recover the mortgage amount. The suit was decreed. It appears that thereafter this decree-holder Lakshminaranappa. Defendant No. 1 filed O. S. No. 225 of 1942-43 for partition and possession of his one-fourth share in the properties Lakshminaranappa and one of the properties in which defendant No. 1 claimed a share was the mortgage decree which was described as item No. 12. Ultimately, the suit was compromised whereby plaintiffs 1 and 2 were held to be entitled to three-fourth share in the property of the deceased Lakshminaranappa. Thereafter, Defendant No. 1 sought to execute the mortgage decree. The application for execution of the decree was made under O. XXI R. 15 of the Code of Civil Procedure. In pursuance of this application the properties were brought to sale and defendant No. 1 purchased the suit property with the permission of the Court thereafter, he obtained possession of the suit property on 27-1-1950 and subsequently sold the same to Defendant No. 2 is at present in possession of the suit property.

(3.) The defendants resisted the plaintiffs' claim for partition and possession of various grounds. The first is, the plaintiffs 1 and 2 are not entitled to claim three fourth share in the suit property. They are at best entitled to claim three-fourth share in the decretal amount that could be realised. Secondly, the suit is barred under Section 66 of the Code of Civil Procedure. Defendant No. 2 being a bona fide purchaser for value without notice is protected under law. In any event, the suit is barred under O. 2, R. 2 of the Code of Civil Procedure.