Decided on November 30,1963



- (1.) This Second Appeal arises out of Original Suit No. 160 of 1956 of the District Munsif's Court, Eluru, instituted by the appellants under Order 21, rule 63 of the Code of Civil Procedure. Defendants 1 to 4 obtained a money decree dated 27th November, 1950 in O.S. No. 80 of 1950 of the Subordinate Judge's Court, Eluru, against defendants 5 and 6. In execution the decree-holders attached the suit property belonging to the Eluru Municipality, on 11th March, 1955. The plaintiffs preferred a claim under Order 21, rule 58, Civil Procedure Code, objecting to the attachment on the ground that their firm, of which the fifth defendant was one of the partners, was the successful bidder of the suit property at an auction held by the Eluru Municipality which owned the property and that in pursuance of the successful bid, a portion of the price had been paid to the Municipality out of the partnership fund". The executing Court by its order dated 27th June 1956 held that the puchase at the auction was made by the fifth defendant in his individual capacity and dismissed the claim. Thereupon the plaintffs instituted the suit under Order 21, rule 63 on 18th July, 1956. In the plaint their case was that, the plaintiffs and the fifth defendant constituted a partnership firm, that the fifth defendant bid at the auction held by the Municipality for and on behalf of the partnership and paid part of the price out of the partnership funds, that subsequently on 10th October, 1949, the fifth defendant relinquished his interest in the partnership in favour of the plaintiffs for a consideration of Rs. 1,500 and that therefore the fifth defendant had no manner of right or interest in the suit property on 11th March, 1955, when the attachment was levied. The decree-holders-defendants resisted the suit on the ground inter alia that the suit property was bid for at the auction by the fifth defendant for his own benefit and not on behalf of any partnership and that the plaintiffs had no manner of right or interest in it. They also pleaded that the alleged relinquishment of the fifth defendant's interest in the firm was not true or bona fide.
(2.) It is well to mention here that the plaintiffs preferred the claim for and on behalf of the partnership and objected to the attachment of the suit property by defendants 1 to 4 on the basis that it was the exclusive property of the 5th defendant. The plaintiffs did not claim that on the date of the attachment the ownership of the suit property vested in them or in their firm.
(3.) When the suit was pending, the plaintiffs obtained a sale deed dated 18th October, 1956, from the Municipality to whom they duly paid the balance purchase money. Thereupon they sought to amend the plaint asking for a declaration that they became the owner of the property and that the decree-holders were not entitled to attach it in execution of a money decree obtained against the fifth defendant in his individual capacity. It appears that subsequently, during the pendency of the suit, the property was brought to Court sale and was purchased by the 7th defendant who is the son-in-law of the decree-holder-third defendant. But this sale does not appear to have yet been confirmed by the Court.;

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