S.H.SHETH - (1.)The plaintiff filed against the father of defendant No. 2 Regular Civil Suit No. 110 of 1950 in the Court of the District Judge at Bhuj to recover a sum of Rs. 10 558 On 31st March 1958 the suit was dismissed on the ground that the Court had no jurisdiction to entertain it. First Appeal No. 17 of 1558 was filed against that order in the High Court of Bombay at Rajkot. On 19th September 1962 this High Court allowed it set aside the order of dismissal and remanded the suit to the Trial Court for decision on merits. On 9th August 1965 the suit was decreed in favour of the plaintiff. Thereafter the plaintiff filed against the defendant No. 2 an application for executing the decree in order to recover the total decretal amount of Rs. 21 875.86 p. including costs and interest. In execution of that decree he attached a piece of land which has been described in the judgment of the Trial Court as the suit verandah. The defendant No. 1 resisted the attachment. He applied for setting aside attachment. His objections were heard under Order 21 Rule 58 of the Code of Civil Procedure by the Executing Court. On 16th January 1967 the Executing Court allowed his application and set aside the attachment because on 15th June 1959 the defendant No. 2 had sold the suit verandah to the defendant No. 1.
(2.)Thereupon the plaintiff filed the present suit for a declaration under Order 21 Rule 63 that the suit verandah belongs to the defendant No. 2 and that he is entitled to attach and sell it in order to recover his decretal dues. He also prayed for a declaration that the sale of the suit verandah by the defendant No. 2 to the defendant No. I was without consideration and therefore bogus and void.
(3.)In defence it was contended by the defendants that the sale of the suit verandah by the defendant No. 2 to the defendant No. I was genuine and was for valuable consideration. It was also contended that the suit was not maintainable because it was not filed as a representative suit under Order 1 Rule 8 C.P.C. It was next contended that the suit was barred by limitation.
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