ADAPA VITTAL Vs. GOVULA RAMAKISTIAH

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff as O. S. No. 18 of 1960, in the Court of the Chief Judge, City Civil Court, Hyderabad, against one Ramakrishtiah and Yeilappa and the plaintiffs brother Adapa Narayan.

(2.) The material allegations in the plaint are that the plaintiff, third defendant Adapa Hanumaiah and Ramalingam are brothers and members of a Hindu joint family till 1938, when Ramalingam separated from the rest of 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 txpended by them used to be debited in their respective names. In 1942 the third defendant opened a shop in partnership with the 1st defendant under the name and style of Adapa Narayan Bombay Palakol cloth shop borrowingmonies from the family funds. The plaintiff and his brother Hanumaiah had also lent money to the said shop. The 1st defendant filed O. S. No. 23 of 1944, in the District Court, Secunderabad for dissolution of partnership and rendition of accounts. The 1st defendant then alleged that the third defendant bad entered into a partnership as manager of the joint family. The third de fendant denied this allegation in his written statement. A preliminary decree Was passed on 19th April, 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 8th October, 1951. The allegation of the plaintiff is that in the arbitration proceedings, none of the other members of the family including the plaintiff was re-presented. The plaintiff had lepresented in O.S.No. 23 of 1944,till the preliminary decree stage in his capacity as General Power of Attorney agent of the 1st defendant and not on behalf of the family. During the progress of the arbi tration proceedings, as differences arose between the three brothers, the plaintiff filed a suit for partition on 11th July, 1951, being O. S. No. 8/1 of 19951 The judgment in O. S. No. 8/1 of 1951, disclose that the joint family had entered into a partnership with the 1st defendant. In execution of the decree in O. S. 33 of 1944 the /st defendant had filed an application for attachment of properties and the plaintiff had filed a claim petition under Order 21 rule' 58, Civil Proceedurc Code. 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. S. No. 101 of 1953 on the filed of the then Subordinate Judge, Secunderabad, attached the decree obtained by the 2nd defendant against the third defendant and in his capacity of attach. Ing creditor filed an execution petition and attached House Nos. 169 and 170 at Marredpalli, Secunderabad, Houses Nos. 52, 54, 55 and 64 at Trimulgherry and Houses 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 16th January, 1957 under Order 21. rule 58, Civil Proceedure Code, which was dismissed. Aggrieved by that order, he has filed the present suit under Order 21 rule 63, Civil Procedure Code, praying that the order dated 5th July, 1960 in his Claim petition be set aside and the attachment order dated 13tb July, 1958, be vacated. In the alternative he claimed that the attachment in respect of 1/3 (hare of the plaintiff be vacated. The order of the trial Court under Order 21, rule 58, Civil Procedure Code, was impugned as erroneous and it was alleged that it was liable to be set aside on the following grounds: (a) The decree in O. S. No. 23 of 1944, was against third defendant alone and was not binding on the plaintiff and in any event the attachment to the extent of plaintiff's 1/3 share in the attached properties is improper; (b) the observation by the Court that the plaintiff had admitted that the partnership business is of the joint family venture, is enoneous ; (c) the plaintiff on the date of the application under Order 21, rule 58 Civil Procedure Code, was in possession of all the properties as Receiver an,, pointed by the Court in O. S No. 8/1 of 1951, by an order dated 10th August, 1957 ; be was in actual possession of his 1/3 share in the attached properties and therefore the order of attachment could not have been extended to his thare; (d) the attachment effected in execution was illegal as it was in contravention of an injunction order issued by the 3rd Additional Judge, City Civil Court, Secunderabad, against the 1st defendant on 14th October,' 1958 restraining him from executing the decree in O. S. No. 23 of 1944. (e) the attachment effected in execution was illegal as it was in con. tfavention of an injunction order issued by the 3rd Additional Judge, City Civil Court, Secunderabad against the 1st defendant on 14th October, '1958 restraining him from executing the decree in O. S. No. 23 of 1944, (f) as the plaintiff was Receiver on the date of the properties attached, the properties were therefore not liable to attachment except with the}leave of the Court which appointed him as Receiver (g) out of the properties attached, House No. 169 Marredpalli, Houses Nos 52 and 53 Trimulgherry were exclusively allotted to the plaintiff and therefore those houses were not attachable.

(3.) The 1st defendant admitted that the plaintiff, third defendant, Adapa Hanumaiah and Ramalingam were all brothers; but he denied his knowledge of separation of Ramalingam from the joint family. He averred that the defendants continued to be joint till the filing of O. S. No. 8/1 of 1951 and there was no separation of mess among brothers till the date of the suit. He was not aware whether separate khatas were opened in their names and that the mounts have been debited in their respective names. He categorically denied that the thrid defendant borrowed money from -he joint family and entered into a partnership with him in his personal capacity. The averment was that the partnership was entered into by the third defendant as head and Manager of the Hindu joint family and that this was done by him with the knowledge and consent of the plaintiff and the negotiations with the partnership were personally conducted by all the brothers and the plaintiff was personally conducting the business of the said firm in partnership with him. He also denied that the suit filed by him as O. S. No. 23 of 1944 was only against Adapa Narayani and the allegations in the plaint would show that it was against the joint family and that fact was never denied by the plaintiff. The consent, memo filed before the preliminary decree was signed by the plaintiff and also by the Advocate representing the plaintiff's family. The plea therefore of the plaintiff that the joint family was not liable, was false and pure-after-thought. The Manager of the family was appointed Receiver and the plaintiff worked, throughout in his place. The 1st defendant after refering to the suit O.S. Na.8/1 of 1951 averred that the plaintiff and his brothers had claimed 1/3 share, from the partnership apsets. He. denied 'hat the decree in O. S. No. 23 of 1944, was passed against the third defendent alone and mainained that it was against. the joint family consisting of the plaintiff and his brothers and therefore binding on all of them. He averred that the plaintiff was not in possessing as Receiver and that he was not entitled to claim 1/3 share as the decree is binding, on him. As regards the reasons for setting aside the attachment, he stated that, those are false and untenable.