GOPALA KONAR Vs. SUBRAMANIA ASARI AND ANR.

JUDGEMENT

(1.) THE question involved is, whether an appeal lay to the District Court of Tiruchirapalli against the order of the District Munsif of Ariyalur dated 12th November, 1963 in E.A. No. 81 of 1963 in O.S. No. 61 of 1960. The facts are these One Thangamuthu Konar purchased a house for Rs. 500 from one Ponnuswami, Asari and his wife Pappammal on 21st July, 1953. Subramania Asari, son of Ponnuswami Asari, however; claimed the property to be his and sold it to one Paramasiva Udayar. Paraniasiva Udayar removed the superstructure of the house. Thangamuthu Konar defended his purchase but was unsuccessful. Thereupon, he filed O.S. No. 61 of 1960 for damages for breach of covenant of title contained in the sale deed dated 21st July, 1953. He impleaded Pappammal as the first defendant in that suit, as she was one of the vendors, Ponnuswami Asari was by then dead. Thangamuthu Konar therefore impleaded Subramania Asari (as 2nd respondent) as the legal representative of Ponnuswami Asari, liable to satisfy his claim out of the assets of Ponnuswami Asari, if any, in his hands. Subsequently, however, Subramania Asari was exonerated but his name was hot struck off the record. A decree was passed on 21st October, 1960, for Rs. 584 -69, the first defendant allowing the suit to proceed ex parte.

(2.) THANGAMUTHU Konar assigned the decree to one Gopal Konar, who levied execution and attached some house belonging to Pappammal. Subramania Asari intervened with a claim petition, E.A. No. 81 of 1963, claiming the property as his own. His petition itself purported to be under Order 21, Rule 58 and Section 47, Civil Procedure Code. His claim was allowed by the learned District Munsif by his order dated 12th November, 1963. Against that Gopala Konar filed an appeal to the District Court, but the District Court held that no appeal lay and that the remedy of Gopala Konar was only a suit under Order 21, Rule 63, Civil Procedure Code. Gopala Konar urged that the matter was one under Section 47, Civil Procedure Code, and therefore an appeal lay. But that contention was rejected by the learned District Judge. This second appeal has been preferred against the order of the learned District Judge.