Decided on June 25,1973



- (1.) PLAINTIFF is the son of the second defendant. His case is that by an unregistered agreement of partition text. 1) dated 29-6-1957 he separated from his father, and the joint family properties were divided by metes and bounds and the disputed properties fell to his share. The partition was confirmed subseauently by a registered partition deed (ext. 2) on 1-6-1960. On 9th February 1960, the first defendant filed Money Suit No. 10 of 1960 in the Court of the Munsif. Jeypore, against the second defendant for recovery of certain loan, and obtained an ex parte decree (ext. 4) on 20th August, 1960 On 22nd November, 1961, the first defendant filed E. P. No. 147/61 in the Court of the Munsif, Jeypore, and attached the disputed properties on 6-2-1962. Ext. B is the writ of attachment. The disputed properties consisting of 21. 91 acres were purchased by the 1st defendant himself on 26-11-1962 and ext. F is the sale-certificate. On 18th of December. 1962, plaintiff filed an application under Order 21. Rule 58 C. P- C. , putting UP a claim to the disputed properties. The same was summarily dismissed on 18-121962. The plaintiff has filed the present suit under Order 21. Rule 63 C. P. C. with the prayer that the summary order Passed on 18-12-1962 in Execution Case No. 147/61 should be set aside and a declaration should be given that the second defendant had no saleable interest in the disputed properties. Consequently the attachment and sale were not binding on the plaintiff. First defendant filed a written statement alleging that there was no partition between the plaintiff and the second defendant in 1957. The disputed properties were attached before judgment on 5-5-1960 prior to the partition effected by ext. 2 on 1-6-1960. He challenged the partition to be collusive. As the attachment was prior to the partition. 1st defendant's case was that the disputed properties were secured for discharge of the dues under the decree passed against the second defendant.
(2.) ALL the Courts have concurrently held that plaintiff failed to establish the partition alleged to have taken place in 1957, and that there was partition between the plaintiff and the second defendant on 1-6-1960 as evidenced by the registered partition-deed (ext. 2 ). The learned Munsif, however, held that the disputed properties were attached on 5-5-1960 prior to the partition on ] -6-1960 and that the attached lands were secured for the satisfaction of the debt in the suit. He accordingly dismissed the plaintiff's suit. The learned subordinate Judge held that the attachment was effected for the first time on 6-2-1962. As the partition was prior to the money-decree he was of opinion that plaintiff was not bound by the decree and the 1st defendant was not entitled to proceed against the properties allotted to the plaintiff's share on the strength of the money-decree. He accordingly reversed the judgment of the Munsif and decreed the suit. In Second Appeal, the learned Single Judge accepted the finding of the lower appellate Court that the attachment was effected for the first time on 6-2-1962. He however, dismissed the suit on the ground that the plaintiff was bound by the decree against his father, the second defendant this appeal has been filed by the plaintiff against the judgment of the learned single Judge assailing the legality of his conclusion.
(3.) THE findings of fact recorded by the lower appellate court which were confirmed in second appeal by the learned Single Judge are not assailed before us by the learned Advocates on either side. We must accordingly Proceed on the correctness of the conclusion that the partition between the plaintiff and the second defendant took place on 1-6-1960 subsequent to the filing of the Money suit on 9-2-1960 and Prior to the passing of the decree on 20-8-1960, and that there was no attachment, before judgment.;

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