VAIKUNT SHRIDHAR BHATTA Vs. MANJUNATH MADHAV BHANDARI

JUDGEMENT

(1.) The facts which have given rise to this appeal are these:- Certain properties including the property in suit formed the subject matter of a partition among four brothers defendants Now. 1 and 2, father of defendant No. 3 and one Venkatraman. At that partition the property in suit was given to their mother during her life-time for her maintenance. One Sheshgiri obtained a decree against defendant No. 2 and in execution of that decree he attached two lands, plaint serial Nos. 1 and 2. Kaveri, the mother of defendant No. 2, objected to the attachment and made an application for having the attachment raised on the ground that plaint serial No. 2 was in her possession; that she was entitled to retain it during her lifetime and that there was a charge thereon for certain sum to be paid by the brothers for her funeral ceremonies after her death. The allegation as to the other land was that it was subject to a charge of her maintenace at a certain monthly rate. This application was granted on the 16th of August 1901. Thereafter in the Darkhast of Sheshgiri an order was made on the 30th of October 1901 directing the sale of both the properties including the property, plaint serial No. 2 subject, to certain charges which were claimed by Kaveri in her application. The right, title and interest of defendant No. 2 in the property were put up for sale subject to the charges mentioned in the order of the 30th of October, and the plaintiff purchased the same. The sale was duly confirmed and apparently 110 objection was taken to the sale thereafter either by the decree-holder or the judgment-debtor. Kaveri died in 1915, and the auction-purchaser filed the present suit in 1917 for the partition of the property described as plaint serial No. 2 and claimed his one-fourth share which represented the interest of defendant No. 2 in the property. Defendants Nos. 1 and 2 contended that in fact there was no attachment of the property in question and that the sale in the absence of any previous attachment was void according to law. The defendant No. 3 did not appear; and defendant No. 4, who was a purchaser of the share of Venkatraman, claimed that on partition his one-fourth share might be assigned to him.

(2.) The trial Court found that the plaint property was released from attachment at the date of the sale, but that Court came to the conclusion that the sale was valid in spite of the absence of a formal attachment at the date of the sale. Accordingly a decree was passed in favour of the plaintiff allowing him his one-fourth share in the plaint serial No. 2 by partition. There was also a decree for past mesne profits and future mesne profits against defendant No. 2. The defendant No. 4 also was allowed under the decree to recover his one-fourth share by partition in the property.

(3.) The defendant No. 1 appealed to the District Court from this decree against the plaintiff and defendant No. 4. He did not join defendants Nos. 2 and 3 as respondents to his appeal. The appellate Court came to the conclusion that the property had been sold by the Court when it was not under attachment and that the sale was void in consequence of the absence of attachment at the time. The learned District Judge accordingly reversed the decision and allowed the appeal with costs.