LAXMAN NILKANT PUSALKAR Vs. VINAYAK KESHAV PUSALKAR

JUDGEMENT

(1.) This suit is brought by the plaintiff to establish his right to attach and sell the interest of the defendant (amounting to one-fourth of an equity of redemption) in execution of a Small Cause Court decree passed on an instrument of loan signed by the judgment-debtor alone who was a brother and co-parcener of the present defendant. The money is held to have been borrowed for the benefit of all the brothers. The present defendant was not a party to the suit in the Small Cause Court.

(2.) The question now to be decided is unembarrassed by the interest of any innocent Court- sale purchaser. It is simply whether the unencumbered interest of a Hindu can be attached and sold in execution to satisfy a money decree obtained against his brother in a suit to which the objector was no party.

(3.) It may be conceded that on the findings of the lower Court the present defendant was a principal disclosed or undisclosed of the borrower and the latter as an agent would have an agent s rights of indemnity, but that is not sufficient for the plaintiff. He desires to obtain satisfaction direct from his debtor s brother s property. A similar question was stated but not decided by the Judicial Committee in Doorga Persad v. Kesho Persad Singh (1882) L.R. 9 I.A. 27 at p. 31. In Bombay cases where the question has arisen the current of decision has not been uniform.