PITCHINATHOO Vs. RAMASAWMY NAICK

JUDGEMENT

(1.) IN this case the plaintiff sued to recover possession of the suit lands claiming an exclusive title to them. It has been found that the lands do not belong to the plaintiff exclusively but jointly to the 3 defendant and himself. The lands were sold by the 3 defendant to the 1st defendant for a debt created by the plaintiff, the managing member. This sale being by a junior member was not binding on the plaintiff's interest. The question then is whether in the circumstances the plaintiff ran be given a decree and if so what decree. Nanabai V/s. Ronchod 26 B. 141 is authority for giving the plaintiff a decree for joint possession along with the 1st defendant to the extent of his--the plaintiff s--interest. We have rot been referred to any authority opposed to the view taken in the Bombay case cited. The existence of the decree, Exhibit M, is no obstacle to such a decree, as the decree-holder is competent to proceed against the whole of the mortgaged property whoever is in possession, the plaintiff and his interest in the mortgaged property being liable for his share of the decree debt. We, therefore, setting aside the decrees of the Courts below, give the plaintiff a decree for joint possession to the extent of his interest along with the 1 defendant. The plaintiff will pay the costs of the 1 defendant in the 1 Court. IN appeal and second appeal, the parties will bear their own costs. The 2nd and 3 defendants will bear their own costs throughout.