DURGA DEI Vs. SADANANDA PRUSTY

JUDGEMENT

(1.) The 1st defendant is the appellant in this second appeal. The appeal arises out of a suit filed under Order 21, Rule 63, of the Civil P. C., which has been filed by the plaintiff-decree-holder against whom an adverse order was passed, on a claim filed by the 1st defendant. The suit was dismissed in the trial Court, but on appeal it was decreed against the 1st defendant and hence this appeal.

(2.) The suit property comprises two lots, specified in the plaint covering an extent of .010 acres which admittedly belonged to one Kinu Sahu. Defendant 1 is his daughter. D. 2 according to the plaintiff is the adopted son of Kinu Sahu and D. 3 is the son of D. 2. Kinu Sahu appears to have died sometime long prior to 1919. D. 2 borrowed a sum of Rs. 90/-from the plaintiff on a mortgage of certain property, other than the suit property, admittedly belonging to Kinu Sahu. The mortgage is Ex. 1 dated 5-5-1919. The palintiff filed subsequently a suit on that mortgage, obtained a decree, brought the properties to sale and realised thereby a portion only of the amount due. For the balance of the amount, he applied for and obtained a personal decree on 23-4-38. During the pendency of the application for personal decree, the plaintiff obtained an attachment before judgment of lot No. 1 out of the suit properties on 14-1-38 Shortly thereafter, Suna Bewa, widow of Kinu Sahu filed a suit for declaration of her title to lot No. 1 on the ground that the second defendant was not the adopted son of her husband Kinu Sahu. That was decreed Ex parte on 21-5-38. After obtaining the personal decree, the plaintiff proceeded to realise the same in execution case No. 354 of 1940. Thereupon Suna Bewa filed a claim proceeding. Misc. case No. 69 of 1941 objecting to the sale of this lot No. I of the suit properties. That claim was allowed on 22-1-41. Thereafter she died. Plaintiff filed another execution application which is execution proceeding No. 67 / 44 against defendants 2 and 3 wherein he sought to bring up for sale lot No. I which was the subject-matter of previous claim, proceedings as also a fresh item lot No. 2. Defendant 1 intervened with a claim which gave rise to Misc. case No. 136/44. Her claim was on the footing that the alleged adoption of the second defendant was not, true as a fact and that the properties which originally belonged to late Kinu Sahu devolved on her on the death of her mother, Suna Bewa. The claim was allowed and hence the plaintiff has filed the present suit.

(3.) The plaintiff's case is that the second defendant is in fact the adopted son of late Kinu Sahu and that the decree obtained by Sunna Bewa in O. S. 48/38 was collusive. The first defendant who is the contesting defendant maintains the contrary and also pleads that the present suit is barred by limitation in so far as the lot No. 1 is concerned and by res judicata in so far as lot No. II is concerned.