RAM JIWAN Vs. INDER BAHADUR SINGH

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit brought against them by the plaintiff-respondent for a declaration that l/3 share of defendant 3 in the properties described in the plaint was liable for attachment; and sale in execution of his (plaintiff s) decree No. 946 of 1929. The plaintiff's case was that he had a decree against defendant 3. Ha applied for attachment and sale of the property of defendant 3. An objection was filed by defendants 1 and 2, who have got his share sold in execution of their decree, and the objection was allowed. Defendants 1 and 2 contended that defendants 3 and Jadunandan were brothers, that they were joint, that Jadunandan had executed a deed as head of the family in their favour and that defendants 1 and 2 obtained a decree on the basis of the said deed and in execution thereof got the shares of Jadunandan and Jagannath both sold. An objection was filed by Jagannath to the attachment of his. share, which was disallowed on 16 August 1930. No suit was filed by Jadunandan under Order 21, Rule 63, and the order dated 16 August 1930, had become final. The trial Court found in favour of the defendants and dismissed the suit. On appeal the learned Subordinate Judge reversed the findings of the lower Court and decreed the appeal. He found that the two brothers Jadunandan and Jagannath were separate and that the order of 16 August 1930, was not binding on the plaintiff.

(2.) It has been argued on behalf of the appellants that the order of 16 August 1930, has become final and is binding on the plaintiff. Inasmuch as the plaintiff is seeking to get the property sold as that of Jagannath. his position is as that of Jagannath's representative. It cannot be denied that the order of 16 August 1930, which had become final, is binding on Jagannath. In the face of this order and the sale that subsequently took place, Jagannath cannot lay any claim to his 1/3 share which is now sought to be sold by the plaintiff as the share of Jagannath in execution of his decree. Jagannath has left no interest in the property in dispute, and consequently it is not liable for attachment and sale as that of Jagannath in execution of the plaintiff's decree. The view that the plaintiff represents Jagannath, judgment-debtor, is supported by the case Ram Sewak v. Bahal 1935 All 888. There certain property was attached by S in execution of a decree against R as belonging to him. A suit filed by RS to which both R and S were impleaded for a declaration that he was the absolute owner of the attachment property was decreed. Subsequently B, another creditor of B, attached the same property in execution of his decree and it was purchased by N; then RS filed another declaratory suit: it was held that the question of title decided in the prior suit was binding on R and all the subsequent representatives. As B attached the property subsequent to the decree, he must be deemed to be a representative of R. Hence the previous judgment operated as res judicata against R and also against the attaching creditor B; hence it must operate as res judicata against the auction-purchaser N as well and they cannot call RS to prove his title over and over again.

(3.) It is, therefore, ordered that the appeal be decreed with costs and the decree of the trial Court be restored. Permission to appeal in Letters Patent is rejected.