VELUSAMY Vs. VISWANATHAN DIED

JUDGEMENT

(1.) ONE Alagiriswami Naidu filed O.S. No.424 of 1974 for recovery of money against Thangavel, the second respondent herein now deceased. The first respondent represented by his mother Nallammal the 17th respondent filed an application underO.21, Rule 58, C.P.C., the execution proceedings of the decree in that suit. The suit properties in that execution application and the suit properties in the present appeal are the same. The present appeal is the continuation of a later suit O.S. No.69 of 1983, which is a suit filed by the first respondent as a minor represented by his mother against his father "T" for declaration of his and his brother's share and other reliefs. The aforesaid Alagiriswami and the appellant herein who purchased the suit property in the Court auction sale conducted in pursuant to the earlier decree were also arrayed as defendants. In the application underO.21Rule 58, C.P.C., it was claimed that the first respondent had an interest in the suit properties. There was a partition deed in 1974, marked as Ex.A-1 under which "T", the father was given only a life estate in the properties and that therefore, the entire suit properties cannot be brought to sale to satisfy the decree debt. The order dismissing the application is marked as Ex.B-4. No appeal was filed there against and the order has become final. The same partition deed was relied on in the present suit for claiming a share in the suit property. In the present suit it was claimed that on no account the suit properties can be brought to sale. The decree debt was for an immoral purpose since "T" was leading a wayward life. The main defence in this suit is the bar of res judicata.

(2.) THE trial Court, however, found that the order Ex.B-4 would apply to the one third share of the father and that the present suit is not barred by res judicata. THE partition deed, Ex.A-1 was accepted by the trial Court as a valid partition and the suit was not decreed as prayed for, but there was a preliminary decree for two third share of the sons of "T". THE appeal is filed by the auction purchaser. Cross-objections have been filed by the plaintiff for not decreeing the suit as prayed for.

(3.) THE observations of the Supreme Court in Deshpande v. Kusum Kulkarni A.I.R. 1978 S.C. 1791 were referred to. Finally the facts of that case were crystallized and it was held that the decision of the Supreme Court applied on all fours. And further it was held as follows: