VENKATACHALLA REDDI Vs. MUTHIALU REDDI

JUDGEMENT

(1.) The 5th defendant obtained a money decree against the 1st and 4th defendants in a suit in which the 2nd and 3rd defendants were parties but were exonerated from liability. The decree-holder attached the undivided half share of the judgment-debtors in certain property alleged to belong to the undivided family of which the four defendants were members, and thereupon the 2nd defendant applied by a petition under Order 21 Rule 58 of the Code of Civil Procedure, that the attachment of portion of the property might be raised on the ground that it had been assigned to him upon a partition and was his separate property. The petition was dismissed on the ground that it was too late. The appellant bought the attached property at the Court sale and then sued the defendants for partition, and an issue was raised whether the portion of the property previously claimed by the 2nd defendant belonged to him.

(2.) The appellant was not a party to the previous suit and is not a representative of any party, Nadamuni Narayana Iyengar v. Veerabhadra Pillai (1910) I.L.R. 34 Mad. 417 and the provisions of Section 47 of the Code of Civil Procedure do not apply to his suit. The question therefore is whether under Order 21 Rule 63, the order made upon the 2nd defendant s petition in the proceedings in execution precludes him from raising this defence.

(3.) The argument on behalf of the 2nd defendant appears to be that Rules 58 to 63 of that Order do not apply to parties to suits who are governed by Section 47, and that applications under that section are in some manner independent of the rules.