ANNADA PROSAD Vs. HARIHAR MANNA

JUDGEMENT

(1.) THIS rule raises the question; can a cosharer who is not in any way a party to the suit or execution proceedings in which a share of a tank has been sold in execution make an application under Order 21, Rule 89, Civil P. C. The trial Court has decided that he can ; the lower appellate Court relying on an incorrect version of Rule 89 as in force in West Bengal, has decided that he cannot.

(2.) THE tank in question was part of the joint property of three brothers, one of whom is the depositor under Rule 89 and another the deceased father of the judgment debtors. The other joint properties of the brothers were partitioned, the tank remaining joint. The sale was held in execution of a money -decree.

(3.) IN Ramchandra v. Srinivasa : AIR1928Mad899 it was held that the cosharer was a 'person holding an interest in the property sold,' as every member of an undivided family has an interest in joint family property, that is to say, not the share of each, but the whole corpus of the property. The case was one under Rule 89, Jackson J. remarking that if one brother chose to pay another brother's debts rather than see the ancestral property pass to stranger (a transaction which may easily involve the family in discredit and inconvenience) there is no objection to his doing so. The decision was not under the wider terms of Rule 89 as in force here.