SHIVA SHANKAR SAH Vs. MANBHARAN RAI

JUDGEMENT

(1.) This appeal by the defendants arises out of the following facts. Lakshman Rai obtained a money decree against Hira Sah. In execution of thafc decree he put up to sale five items of property which belonged jointly to the judgment-debtor and the latter's brother. Two items, namely Nos. 1276 and 3565 were purchased by Manbharan Rai and the remaining three items, Nos. 1422, 1425 and 3562, were purchased by Lakshman Rai. Each of the auction-purchasers obtained possession of the items purchased by him respectively, jointly with the brother of the judgment-debtor.

(2.) Subsequently a suit was instituted for partition as against the brother of the judgment-debtor, purporting to be a suit by Manbharan Rai and Lakshman Rai, the two auction-purchasers. Defendant 1 pleaded inter alia that Lakshman Rai was not in fact a party to the suit and that Manbharan Rai had no rights in those items of property which had been purchased by Lakstimsman Rai. Lakshman Rai also filed a petition: supporting this plea of the defendant. He alleged that his name had been fraudulently used as a plaintiff in the suit and he had nothing to do with it. The plaintiff Manbharan Rai, on the other hand, affirmed that there had been an agreement between himself and Lakshman Rai that any of the properties to be put up to sale in execution of the money decree which should be purchased by either of them, should be held on behalf of both of them by the purchaser. It is on the strength of that agreement that he claims partition. The claim is met by the bar of Section 66, Civil P.C.

(3.) As was pointed out by a Division Bench of the Allahabad High Court, in a case where the facts were indistinguishable from the facts of this case Bishan Dayal v. Kesho Prasad that Section is a bar to a suit where a partnership or agreement is entered into between two persons to purchase property at an auction execution sale with) funds contributed by both in the name of one person only.