CHANNABASAYYA SHIVALINGAYYA HIREMATH Vs. CHINTAMAN ANANTKULKARNI

JUDGEMENT

(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 & 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. 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.