CHATURBUJADOSS KUSHALDOSS AND SONS Vs. MINOR RAJAMANICKA MUDALI BY FATHER AND NEXT FRIEND EKAMBARA MUDALIAR

JUDGEMENT

(1.) The 1 defendant is the appellant in Appeal No. 250. of 1925 and he is the decree-holder in C.S. No. 81 of 1921 on the file of the High Court, Madras. The 2nd defendant is the appellant in Appeal No. 332 of 1925 and he is the auction purchaser of the properties sold in execution of the decree in C.S. No. 81 of 1921. These appeals arise out of a suit instituted by the plaintiff for a declaration that the decree in C.S. No. 81 of 1921 and the attachment and sale held in execution of that decree are not binding on him.

(2.) The facts are briefly these. One Parthasarathi Mudali who was doing business in yarn and cloths had dealings with the 1 defendant, Kushaldoss & Sons, and owed them a considerable sum of money. He died on the 18 May, 1920, leaving a will, dated 14 May, 1920. By this will the plaintiff, his nephew, was given the whole estate of the testator subject to the other dispositions mentioned in it. After the death of Parthasarathi Mudali, his widow Sengalani Ammal applied on 5th October, 1920, for a succession certificate in order to enable her to collect the outstandings due to him. The plaintiff's father as his guardian objected to the issue of the certificate. But an order was passed in favour of the widow as the counter-petitioner said that he intended to file a separate suit to establish his rights under the will and that he had no objection to the petitioner being given the certificate provided she furnished substantial security. On 22nd December, 1920, O.S. No. 65 of 1921 on the file of the Court of the Subordinate Judge of Vellore was filed by the plaintiff to establish his rights. It was disposed of in his favour on 24 April, 1922. Meanwhile, on 31 January, 1921, that is, after the institution of O.S. No. 65 of 1921, the present 1 defendant filed C.S. No. 81 of 1921 on the file of the High Court against Sengalani Ammal, the widow of the deceased .Parthasarathi Mudali as representing her husband's estate, for the recovery of money due from Parthasarathi Mudali. The suit was heard and decided ex parte on 30 March, 1921, i.e., before the disposal of O.S. No. 65 of 1921. The decree directed that Sengalani Ammal,. the defendant . . . . . do from and out of the assets of her deceased husband Parthasarathi Mudali, come to her hands do pay to the plaintiffs the sum of Rs. 3,518-11-0, etc.

(3.) This decree was transferred for execution to the Court of the District Munsif of Ranipet on 3 July, 1922, and sale of the suit properties was posted to 28th August, 1922. As the plaintiff had by that time obtained a decree in his favour he intervened in execution proceedings and wanted to be brought on record in order to oppose the execution, but as his petition was filed on the day fixed for sale of the properties it was dismissed as being too late. The sale proceeded and the 2nd defendant, purchased the suit properties for a sum of Rs. 3,850. It is the decree in C.S. No. 81 of 1921 on the file of the High, Court and the execution sale in favour of the 2nd defendant which the plaintiff now contends do not bind him..