SABAPATHI PILLAY Vs. THANDAVAROYA ODAYAR

JUDGEMENT

(1.) The plaintiff s vendor purchased certain properties in execution of a money decree against the first defendant and obtained a certificate of sale, Exhibit A. At the time of attachment, a partition suit between the first defendant and his coparceners was pending. The decree in the partition suit allotted certain properties to the first defendant. On comparing the sale certificate, Exhibit A, with the list of the properties which the first defendant obtained under the partition decree, it is found that the sale certificate included items which did not all of them correspond to the items in the partition decree. Plaintiff obtained 283 cents under the sale certificate. His suit was for the allotment of this extent from the items given under the partition decree.

(2.) Some of the items being common to both, there will be no difficulty in decreeing them to the plaintiff. As regards those which do not correspond to the partition decree, the question is whether the plaintiff is entitled to have their equivalent from out of the properties which fell to the 1st defendant s share in the partition.

(3.) It was first argued that whatever may be the plaintiff s rights, he is not entitled to claim that the exact extent minus the extent of the items which are common should be carved out of the other items. There is much to be said for this argument, because the properties that were allotted on the partition might be more valuable than the properties purchased at the auction. The latter might be unproductive punja lands. But the point was not put in issue in the Courts below or even here specifically. The consideration of the question would necessitate the taking of evidence : we have, therefore, refused to hear the question argued.