MADANMOHAN Vs. HARI ANANDILAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit instituted by the appellants under Order 21, Rule 103 of the Code of Civil Procedure. The relevant facts are as follows : The appellants instituted a suit against two persons Moreshwar and his brother Madhao for the recovery of money. That suit was civil suit No. 16/32. Ultimately, a consent decree was passed therein on 2-12-1932. In accordance with the terms of that decree, the amount was payable in instalments and for the recovery of that amount, a charge was created over certain property belonging to the two brothers, including a house situate in Circle No. 9/11 in Nagpur. This decree was eventually registered on 7-8-1933.

(2.) ONE Gangabai had obtained a money decree against Moreshwar and Madhao in civil suit No. 1478/34. In execution of that decree, she attached the house aforesaid and put it to sale through; the Court and that house was purchased by the respondent for Rs. 400/- on 6-10-1943. The sale was eventually confirmed on 4-12-1943 and the respondent was placed in possession of the house on 25-2-tt944.

(3.) DURING this period, the appellants were also taking steps to realise their charge. In those proceedings the respondent put in an objection to the sale of the house but his objection was summarily rejected on 3-12-1943. He therefore instituted a suit for a declaration of his rights against the appellants but withdrew that suit on 29-7-1944 without obtaining liberty to bring a fresh suit on the same cause of action. While this suit was pending, the house in question was sold for realisation of the charge in favour of the appellants and was purchased by them on 2-3-1944. The sale was confirmed in their favour and a sale certificate was granted to them on 13-10-1944.