BASAPPA BUDAPPA HALAVALAD Vs. BHIMANGOWDA SHIDDANGOWDA PATIL

JUDGEMENT

(1.) In this case the plaintiff brought a suit against his brother Basangowda on August 2, 1918, for a partition of joint family property. On August 10, 1918, Basangowda sold the property in suit, which was included in the claim of his brother, to defendants Nos. 1 and 2. Basangowda died before the suit could be determined, and his widow and children were brought on the record in his place, Eventually a decree was passed under a compromise which inter alia awarded the plaintiff half of the suit property. In 1923 he brought a suit against defendants Nos. 1 and 2, to whom Basangowda had sold the property, and two others to recover possession of this half of the suit property, namely Survey No. 408.

(2.) The trial Court dismissed his suit holding that the decree was invalid for certain reasons, On appeal the District Judge of Dharwar held that Section 52 of the Transfer of Property Act applied to the sale in favour of defendants Nos. 1 and 2, and that they were bound by the consent decree. He allowed the appeal and awarded the plaintiff half of S.N. 408 with mesne profits.

(3.) The defendant No. 2 appeals from this decree. On his behalf two main contentions were set up: (1) that defendants Nos. 1 and 2 should have been made parties to the suit of 1918, and not having been so joined the decree is not binding upon them; (2) that even if they are bound by the decree they were "representatives" of Basangowda within the meaning of Section 47, Civil Procedure Code, and that the present suit is barred under that section, because the plaintiff should have asked for possession of the property in execution proceedings,