RAMAYYA AYYAR Vs. KRISHNACHARIAR

JUDGEMENT

(1.) IN this case the equity of redemption in certain property belonging in equal shares to two divided brothers was attached in execution of a decree against both and ordered to be sold in execution. The senior brother obtained leave to sell privately under Order XXI, Rule 83 of the Code of Civil Procedure. The junior brother objected and the District Munsif, instead of cancelling the permission to sell privately, allowed the sale to go on, leaving the elder brother s right to sell his brother s interest undecided. On the authority of Danappa v. Yamnappa 26 B. 379 4 Bom. L.R. 61 we must hold that the senior brother had no power to sell his brother s interest. The property was purchased by the defendant, a prior mortgagee, from both the brothers, and who has since been in possession and is now sued by the younger brother for his half of the suit property.

(2.) AT the date of the defendant s purchase the interests of both brothers had become liable to be sold for the decree debt by virtue of the attachment and order of sale. In these circumstances the defendant having by his purchase paid the money to free the plaintiff s share of the property from sale in execution of the decree, we do not think the plaintiff should be allowed to recover from him, except on payment of one-half of the price paid by the defendant with interest at 6 per cent. As regards the 8 cents, we think they belong to the defendant and that plaintiff has no interest in this. The decree will be modified accordingly, the final decree to be passed by the District Munsif. Parties to pay and receive proportionate ousts in the High Court.