ADAPA VITTAL Vs. GOVULA RAMAKISTIAH AND OTHERS

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff as C. Section 18 of 1960 in the Court of the Chief Judge, City Civil Court, Hyderabad against one Ramakrishtiah and Yellappa and the plaintiff's brother Adapa Narayan.

(2.) The material allegations in the plaint are that the plaintiff, third defendant, Adapa Hanmaiah and Ramalingam are brothers and members of a Hindu joint family till 1938, when Ramalingam separated from the rest of the family. After the separation of Ramalingam, the family continued to be joint till July 1940 when there was a separation in mess between the brothers. The plaintiff's allegation is that thereafter separate khatas were opened in the names of the three brothers representing their branch of families and all the amounts paid or expended by them used to be debited in their respective names. In 1942 the third defendant opened a shop in a partnership with the 1st defendant under the name and style of Adapa Narayan Bombay Palakol Cloth shop borrowing monies from the family funds. The plaintiff and his brother Hanmaiah had also lent money to the said shop. The 1st defendant filed O. Section 23/44 in the District Court, Secunderabad for dissolution of partnership and rendition of accounts. The 1st defendant then alleged that the third defendant had entered into a partnership as manager of the joint family. The third defendant denied this allegation in his written statement. A preliminary decree was passed on 19-4-1944 against only the third defendant and an arbitrator was appointed to give an award on the profits and on the basis of the award made by the arbitrator, the court passed the final decree on 8-10-1951. The allegation of the plaintiff is that in the arbitration proceedings, none of the other members of the family including the plaintiff was represented. The plaintiff had represented in O. Section 23/44 till the preliminary decree stage in his capacity as General Power of Attorney agent of the Ist defendant and not on behalf of the family. During the progress of the arbitration proceedings, as differences arose between the three brothers, the plaintiff filed a suit for partition on 11-7-1951 being O. Section 8/1/51. The judgment in O. Section 8/1/51 discloses that the joint family had entered into a partnership with the 1st defendant. In execution of the decree in O. Section 23/44 the 1st defendant had filed an application for attachment of properties and the plaintiff had filed a claim petition under Order 21, Rule 58, C. P. C. As the 1st defendant did not press his execution petition, the objection petition was also closed as not pressed. The second defendant who had obtained a decree in O. Section 101/53 on the file of the then Subordinate Judge, Secunderabad, attached the decree obtained by the 2nd defendant against the third defendant and in his capacity of attaching creditor filed an execution petition and attached house Nos. 169 and 170 at Marredpalli, Secunderabad, House Nos. 52, 54, 55 and 64 at Trimulgherry and House Nos. 71 to 76 at Mettuguda, Secunderabad for the recovery of the sum due under his decree. The plaintiff contended that the said attachment is illegal and unauthorised and also filed an objection petition on 16-1-57 under Order 21, Rule 58, C. P. C. which was dismissed. Aggrieved by that order, he has filed the present suit under Order 21, Rule 63, C. P. C. praying that the order dated 5th July 1960 in his claim petition be set aside and the attachment order dated 13th July 1958 be vacated. In the alternative he claimed that the attachment in respect of ? ... " share of the plaintiff be vacated. The order of the trial court under Order 21, Rule 58, C. P. C. was impugned as erroneous and it was alleged that it was liable to be set aside on the following grounds:

(3.) The defendant 2 supported defendant No. 1. He relied on the judgment in O. Section 8/1/51 for showing that the family remained as joint family till the filing of the partition suit. As far as he is concerned, he has stated that he had obtained a decree valid against the 1st defendant and in execution of that decree, has attached the decree in O. Section 23/44 and put it in execution. The execution proceedings taken by him are binding on all the parties and the attachment is legally valid. As far as the allegations made in para 5 of the plaint, which gives the reasons for setting aside the attachment the second defendant denied the same and put the plaintiff to strict proof of those allegations.