VITHAL Vs. DAWOO

JUDGEMENT

(1.) THIS is an appeal against the order of the Second Additional District Judge, Yeotmal, refusing to grant a temporary injunction to the appellants. The appellants had brought a suit against their father and his various creditors claiming a declaration that the debts mentioned in a list attached to the plaint were not binding upon their share in the family property, and claiming partition of the property. The plaint was presented on 7th January 1928. On 19th January the pleader for the plaintiffs' presented an application asking for a temporary injunction restraining the sale of the property in execution of the decrees of some of the creditors and notices were ordered to be issued. No definite orders appear to have been made upon the application for an injunction, but in the order sheet, dated 27th February 1928, it is mentioned that the S.D. Officer, Yeotmal, be informed that the sale proclamation should make it clear that only right, title and interest of the J.D. in the property attached will be auctioned.

(2.) IN the order sheet of 20th July 1928, it is mentioned: Mr. Abhyankar filed an application on behalf of defendant 3 saying that the S.D.M. Wun, has ordered sale of only one-third share of the J.D. in the Collector's case. He says he would file an affidavit in support of this on the next hearing.

(3.) IT appears that some of the creditors, in execution of their decrees against the father Dawoo have attached the whole property and are now bringing it to sale. Admittedly the plaintiffs-appellants and their father Dawoo, form a joint Hindu family with joint ancestral property, and they claim that their two-thirds share in the property is not liable to attachment and sale in execution of the debts incurred by their father. They alleged in the plaint that their father is leading an extravagant and immoral life, and that the debts were incurred for illegal and immoral purposes and are therefore not binding upon them. The lower Court, in its order, has held that prima facie the plaintiffs' interest in the property would pass by the auction sales, that the present suit is not likely to be disposed of quickly, that the doctrine of lis pendens applies to auction sales, and that the auction purchasers will therefore take the property sold subject to the result of the suit. The Court further held that the Court granting an injunction should see that there is a probability that the plaintiffs are entitled to the relief claimed and then see on which side, in the event of success, the balance of inconvenience would he if the injunction is not granted. The Additional District Judge held that he was not satisfied that the plaintiffs would be seriously inconvenienced if the execution of the decrees were not stayed, that prima facie the plaintiffs, as the sons, were liable for their father's debts, and that they could only escape that liability by proving that the debts were tainted by illegality or immorality and that therefore it was not probable that they would be entitled to the relief claimed.