MANGILAL Vs. KEDARNATH

JUDGEMENT

(1.) THE respondent Kedarnath is the auction-purchaser of the house in dispute, sold in execution of a money decree obtained by one Moolchand against Bastiram, who is now dead and is represented on the record of this case by his widow, sons and daughters arrayed as respondents Nos. 2 to 8. The appellants before me are the brothers and the mother of the deceased Bastiram.

(2.) IT appears that when the house in question was attached in execution of the decree obtained by Moolchand, the present appellants preferred an objection under Order XXI, Rule 58, Civil P. C. but the same having not been prosecuted by them was dismissed in default. They, however, did not file a suit under Order XXI, rule 63 Civil P. C. within the period prescribed by law, but instituted a suit under section 42, Specific Relief Act for declaration of their title to the property in dispute. Admittedly this suit was also finally dismissed as barred by limitation.

(3.) SOME time later, the auction-purchaser viz. Kedarnath filed the present suit in the Court of Munsiff City. Jodhpur for possession of the property in question on the ground that the appellant-defendants had dispossessed him after he had obtained possession of the same in the course of execution proceedings. The defendants resisted the suit on the ground that the property belonged to them and the same had been wrongly attached and sold in execution of the decree obtained by moolchand against Bastiram.