BOOLOGAM NAIDU Vs. JAGANNATH

JUDGEMENT

(1.) This is an appeal by the second defendant, the son of the first defendant, against the decree of the lower court directing the sale of his 1/8th share. Mr. S. Thyagaraja Aiyar for the appellant contends that since the second defendant was not made a party to E. P. No. 308 of 1937, the sale of his share is null and void. We find that it was after the filing of E. P. No. 308 of 1937 that the decree in O. S. No. 55 of 1936 was passed on 10-7-1937, by which the order on the claim petition was set aside and the attachment of the second defendant's share was restored. As the first defendant was the kartha of the family, he must be deemed to have represented the second defendant also in E. P. No. 308 of 1937. It cannot be said that even though the second defendant was hot 'eo nomine' a party to this E. P., he was not represented in the petition, because his father, the manager of the Joint family was on record.

(2.) The other argument of the learned counsel is that the decree in O. S. No. 55 of 1933 cannot be held to have restored what was disallowed on the claim petition; because it is only a party against whom an order is made that may institute a suit to establish the right which he claims in the property in dispute and since O. S. No. 55 of 1936 was by the sixth defendant, the order on the claim petition must be deemed to have become conclusive and therefore the attachment of his 1/8th share must be deemed to have been disallowed long ago. We are unable to accept this contention because in the decree in O. S. No. 55 of 1936 it is clearly stated that what was disallowed on the second defendant's claim had been restored as a result of the suit.

(3.) Mr. Thyagaraja Aiyar then raised the question of limitation which the learned Judge has decided under issue No. 7. This raises a rather interesting question Where the applicability of Article. 120 has to be considered.