- (1.) THIS appeal by the defendants Nanbachcha and Rajaram arises out of a suit filed by the plaintiff- respondents to set aside an auction sale of the house in question in an execution case.
(2.) THE relevant pedigree of the plaintiff-respondents as set out in the plaint is as follows: THE plaintiffs claimed to be members of a joint Hindu family and the house in dispute was said to be the property of that joint Hindu family. THE defendant No. 2 Raja Ram filed a suit for recovery of arrears of rent and ejectment against Hanuman Prasad and Gopal Das, the defendants 3 and 4 respectively, being suit No. 614 of 1960 in the court of Munsif West, Allahabad. A decree for a sum of Rs. 800 being arrears of rent was passed in that suit against defendants Nos. 3 and 4. Defendant No. 2 put that decree into execution and got attached and sold the said house. It was purchased by defendant No. 1 for a sum of Rs. 4100. THE plaintiffs alleged that the said property was not liable to attachment and sale in execution of that decree inasmuch as it was a joint family property, and the decree passed in Suit No. 614 of 1960 being a personal decree against defendants 3 and 4 was not binding on the plaintiffs. THEy therefore, alleged that the sale of the said property in favour of defendant No. 1 was illegal and void, and was, therefore liable to be set aside. The suit was resisted by the defendants 1 and 2 who filed separate written statements. The defendant No. 1 pleaded inter alia, that the plaintiffs had no right, title or interest in the disputed house and the suit was barred by time. It was also pleaded that the suit was barred by the provisions of Order XXI, Rules 63, 93, and 103 of the Code of Civil Procedure. He further pleaded that the business carried on in the tenanted house in question by defendants 3 and 4 was joint family business hence the decree passed against defendants 3 and 4 was binding on all their heirs and successors, and that the said decree was not a personal decree against defendants 3 and 4. It was also pleaded that the objections filed under Order XXI, Rule 58, Civil Procedure Code were dismissed twice and the said order was binding on the plaintiffs and defendants 3 and 4. The defendant No. 2 pleaded that the plaintiffs were not owners or co-sharers of the disputed house; that the suit was barred by time as also by Order XXI, Rules 63, 92 and 103 of the Code of Civil Procedure. The trial court held that the plaintiffs were co-owners in possession of the house in dispute; that the suit was barred under Order XXI, Rules 63 and 92, C.P.C. and as the plaintiffs had failed to institute a suit within a period of one year from the final order passed under Order XXI, Rule 58, C.P.C. the sale had become absolute. On these findings the trial court dismissed the suit.
(3.) AGAINST that decision the plaintiffs preferred an appeal before the District Judge, Allahabad. The appellate court below disagreeing with the trial court held that the suit was not barred by time. It, however, affirmed the finding of the trial court that the plaintiffs are the co-owners of the disputed house and are in possession over the same. On these findings the appellate court below allowed the appeal and modifying the decree passed by the trial court, set aside the auction sale of the house in dispute to the extent of the plaintiffs' 8/9th share therein. Aggrieved, the defendants Nos. 1 and 2 have come up to this Court on second appeal.;