MOTILAL HIRACHAND MARWADI Vs. SADABAI

JUDGEMENT

(1.) THE facts giving rise to this appeal, briefly stated, are as follows:

(2.) IN Civil Suit No. 131 of 1923 money decree was obtained against Ratanchand Walchand and Hirachand Gambhirmal. It is not disputed that the decree was a joint and several decree against both these judgment-debtors. In execution of that decree, auction sale in respect of the property involved in the present suit was held on 23rd March 1944. The sale was confirmed on 14th October 1944. For some reasons which are not clear on record, the sale certificate was issued as late as 18th March 1953. It is not disputed that judgment-debtor Ratanchand Walchand died on 6th March 1935 i. e. , long before the auction-sale in question was held. Judgment-debtor Hirachand Gambhirmal died on 21st April 1944 i. e. after the auction-sale in question, but within 30 days thereof. The plaintiff Manikchand Daulatram Bora filed the present suit on 10th August 1956 to recover possession of the three houses which are the subject-matter of the present suit on the basis of the sale certificate issued to him.

(3.) DEFENDANT Motilal Hirachand Mar-wadi, who is the son of above-mentioned judgment-debtor Hirachand, by his written statement, Exhibit 10, contends that the suit is bad for want of necessary parties, it is barred by limitation, the debt for which the. property was sold was avyavaharik. i. e. illegal and immoral, hence not binding on him, the decree in execution of which the sale was held is not binding on him as he was not a party to the suit, since he was not brought on record as Hirachand's heir in the execution proceedings, the auction sale is not binding on him, and the present suit for possession is, therefore, not tenable.