NINGAUDA GIRIMALLAPPA PATIL Vs. NABISAHEB ABALAL PATIL

JUDGEMENT

(1.) 1. This is an appeal by the plaintiff in a suit to recover possession of certain properties. The facts which have led to the appeal are shortly as follows:

(2.) DEFENDANTS Nos. 1 to 4 are brothers constituting a joint family having an undivided one-fourth share in the suit lands. They had mortgaged them with possession to one Mirza Abdul Begg for Rs. 200 some time before 1930. On March 25, 1930, defendants Nos. 3 and 4 redeemed the property from the mortgagee. Defendant No.3 had contributed Rs. 50 for his one-fourth share, and the balance of Rs. 150 was paid by defendant No.4 on behalf of himself and defendants Nos. 1 and 2.He was thus subrogated to the position of the mortgagee Mirza so far as the shares of defendants Nos. 1 and 2 were concerned. One Kadgauda had obtained a money decree against defendant No.1 alone, and he filed Darkhast No.345 of 1935 for bringing his one-fourth share in the suit property to sale. On February 12, 1936, defendant No.4 applied to the Court under O. XXI, Rule 58, of the Civil Procedure Code, 1908, to have the share of defendant No.1 sold subject to the encumbrance of Rs. 50 due to him by virtue of the subrogation. The sale, which had not been stayed during the pendency of this application, took place on July 16, 1936, and the present plaintiff became the auction-purchaser. The claim petition came for hearing on August 11, 1936,. after the sale had taken place. The Subordinate Judge was of the opinion that as the sale had already taken place, the previous attachment of the property at the instance of the decree holder was no longer subsisting and that the application was liable to be rejected as not tenable. In his view the attachment having come to an end, the claimant could not get the sale set aside or take steps to bind the purchaser by virtue of any order in that application. The application was, therefore, dismissed. No suit to have the order of dismissal set aside and to have his claim established was brought by the claimant defendant No.4 within one year after the passing of that order. Thereafter he sold his rights under the mortgage to which he had been subrogated to defendant No.5 on February 2, 1937. The plaintiff as the auction purchaser in the execution sale filed the present suit on March 22, 1938, to recover one-fourth share in one land and one-eighth share in the other land of defendant No.1. His case was that as defendant No.4 did not file a suit under O. XXI, Rule 63, within one year from the date of the dismissal of his application, he was precluded from setting up his rights under the in cumbrance, and that the plaintiff had, therefore, acquired the entire rights in the property without any burden in favour of defendant No.4.

(3.) THE plaintiff has now appealed to this Court and the main contention of his learned advocate is that the order passed by the executing Court must be taken to be one under O. XXI, Rule 63, with the result that a suit ought to have been filed within one year from the date of the order.