BHANWARLAL Vs. BHULIBAI

JUDGEMENT

(1.) A preliminary objection has been raised in this appeal on behalf of the respondents that the appeal has abated as a whole on account of the failure on the part of the appellant to substitute the legal representatives of the respondent mohanlal, who admittedly died on" 1-5-68, during the pendency of this appeal. In order to appreciate the preliminary objection it may the necessary to narrate a few facts giving rise to this appeal.

(2.) RESPONDENTS Nos. 2 and 8 Rekhchand and Gokalchand (defendants) obtained a money decree against respondent-defendant No. 4 Balmukand. In execution of that decree the house in dispute was auctioned and purchased by the appellant bhanwarlal, Objection under Order 21, Rule 58, C. P. C. , was preferred by mohanlal (deceased) son of Balmukand, but the same was dismissed. Consequently the respondent No. 1 Smt. Bhuli Bai, wife of Balmukand, in her personal capacity as also in the capacity of the guardian of her minor son Mohanlal filed the present suit under Order 21, Rule 63, C. P. C. , for declaration that the decree in execution of which the property in question has been sold, was in respect of an immoral debt incurred by Balmukand and, therefore, the sale of the suit property in favour of Bhanwarlal was void and ineffective. The suit was resisted by the auction-purchaser Bhanwarlal as well as the decree-holder rekhchand and Gokalchand.

(3.) AFTER recording the evidence produced by the parties the trial Court dismissed the suit on 5-12-61. The plaintiff filed appeal in the Court of the District Judge, kota, who by his judgment dated 8th February, 1965, set aside the judgment and decree of the trial Court and decreed the plaintiffs suit and thereby granted a declaration in the plaintiff's favour that the attachment and sale of the suit property was inoperative and ineffective against the plaintiffs.