JAGANNADH Vs. PERUMAL NAIDU AND ORS.

JUDGEMENT

(1.) THE appellant who is the plaintiff, in the suit for partition and separate possession, Original Suit No. 66 of 1947, has preferred this appeal against the order of the lower Court dismissing his application for the passing of the final decree on the ground that he committed fraud on the lower Court in obtaining the preliminary decree for partition.

(2.) THE main facts which are not in controversy may be stated. The B schedule properties of which A schedule also forms part, belonged to four brothers the first defendant, the third, the sixth and the father of the seventh defendant. The second defendant is the son of the first defendant, defendants 4 and 5 are sons of the third defendant and the other defendants are alienees. One Chunilal Sowcar (hereinafter' referred to as Sowcar) obtained a decree in Original Suit No. 102 of 1930, against the first defendant on 2nd September, 1930. Later on in 1931, defendants 3 and 6 executed security bonds offering themselves liable as sureties for the decree amount. There was first an attachment for the realisation of the amount due under the decree, viz., Rs. 2,673 -4 -0 of the share of the first, third and sixth defendants and the executing Court passed an order that in the first instance, the share of the first defendant should be sold and for any deficiency, the shares of the third and sixth defendants could be pursued later. In accordance with this order there was Court -auction sale and on 13th October, 1937, Jagannadha (the plaintiff in the suit, Original Suit No. 66 of 1947 aforesaid) purchased the A schedule properties for a sum of Rs. 70 subject to prior encumbrances in the region of about Rs. 15,000. Later on the Sowcar executed the decree for the recovery of the balance as against the shares of defendants 3 and 6 as well as for execution against them personally by way of concurrent execution. Defendants 3 and 6 paid the entire balance of the decree amount to the Sowcar on 25th January, 1944 and thereupon the execution petition was dismissed, full satisfaction having been recorded. This payment of the entire balance decree amount by defendants 3 and 6 is also evidenced by the receipt, Exhibit B -12, dated 25th January, 1944. That receipt runs as follows:

(3.) JAGANNADHA who purchased the A schedule properties in Court -auction is admittedly the power of attorney agent of the Sowcar. In July, 1947, he filed the present suits, Original Suit No. 66 of 1947, for partition and separate possession claiming the share of not only the first defendant but the shares of the third and sixth defendants as well. The trial Court negatived this contention and held that the plaintiff had purchased only the share of the first defendant in the A schedule properties and did not purchase the shares of the third and sixth defendants.