TRIMBAKRAO Vs. SAMPATRAO

JUDGEMENT

(1.) 1. The judgment in this appeal will also cover First Appeals Nos. 83-B and 84-B of 1930. These appeals arise out of execution proceedings in Suits Nos. 1 of 1923 and 5 of 1926 'from the Court of the Additional District Judge, Buldana, whereby Trimbakrao and Daulatrao, defendants 1 and 2, had obtained decrees in respect of mesne profits relating back to a partition suit, against Amritrao, the elder brother of Daulatrao and the cousin of Trimbakrao who had been his brother, but was adopted by his uncle. Sampat, the son of Amritrao, brought a suit for a declaration that his half share in the property attached, which was the property that had fallen to Amritrao's share on the partition, was not liable in execution of these decrees. He pleaded that he was separate from his father and that his share was not liable to attachment and also that the decree passed against his father was the result of his father's wrongful act and that in no case would the son be liable for such a debt of his father whether he was separated or joint with him. In the course of the trial of that suit Sampat obtained an ex parte interim injunction restraining the sale of a half share in the property. The defendants immediately protested against the injunction, but their objection was rejected by the Judge who had passed the order and the interim injunction continued. The date of this is 30th November 1929. Shortly after this the plaintiff's father died and the C form which had been sent to the Collector for execution in respect of the remaining half share which was not covered by the injunction was returned for bringing the legal representatives of the deceased Amritrao on the record. These representatives are undoubtedly his three sons Sampat and his brothers. On 26th July 1930 the remaining sons put in an application to the effect that they were not liable in respect of the decretal amount and their contentions which have been repeated in Appeals Nos. 83 and 84, are on the record of miscellaneous proceedings attached to Civil Suit No. 1 of 1923 of the Additional District Judge, Buldana. The learned Additional District Judge's order ran as follows :

(2.) ND August 1980 .. The three sons of Amritrao are admittedly the legal representatives and their names are brought on record. The form C will be corrected and returned to the Collector. The objection of the sons with regard to the nature of the debt appears to be frivolous. However they are entitled to show that the decretal debt is not binding on them and that the matter will be separately inquired into. The parties are asked to file their documents. Case for 4th October 1930.... 2. The inquiry was proceeding until an order of this Court stayed the execution proceedings. Appeal No. 5-B of 1930 is by the defendants, Trimbakrao and Daulatrao, against the grant of the injunction, and Appeals Nos. 83-B and 84-B are appeals in respect of the execution of the two decrees by the remaining sons of Amritrao, Sakharam and Hassanrao, protesting against the action of the Additional District Judge in returning the C form to the Collector before inquiring into and deciding their objection. The grounds urged in Appeal No. 5-B are grounds attacking the plaintiff's case as put forward in the declaratory Suit No. 110 of 1929, and if those grounds were to be considered and decided in the appellants' favour the result would be a prejudging of the case which is still under trial.

(3.) IN the granting of injunctions the question of the balance of convenience of the parties is also a matter for consideration. If the plaintiff proves his case and is confronted with the accomplished fact of the sale of his share in the property his interests would be badly damaged. The appellants complain that from the time of the original partition they have been persistently obstructed by the plaintiff's branch of the family. This is no doubt true, but for the delay caused in this case by appealing against the order granting the interim injunction which was passed nearly three years ago the appellants have only themselves to blame. Had they accepted the fact of the injunction the case would have proceeded and would have been disposed of long ago. As it is, the appeal against the granting of the injunction must fail as it is clear from the record that the discretion exercised by the lower Court has been judicially exercised and the facts in the case appear to have been correctly appreciated and are such as demand due consideration. The result is that the appeal fails and is dismissed.