K.D.SHARMA, J. - (1.) THIS is a civil second appeal filed by Kishan Gopal plaintiff' against the judgment and decree of the Senior Civil Judge No. 1, jodhpur, dated August 7. 1967, by which the judgment and decree passed by the Additional Munsiff No. 1, Jodhpur City, dismissing the plaintiff's suit for recovery of Rs. 1611.75 P. as principal together with a sum of Rs. 205 50 P. as interest was confirmed but the cross -objection filed by the respondent against disallowance of costs of suit to him was accepted.
(2.) THE brief facts giving rise to the suit, out of which this appeal arises, may be stated as follows One PJD' souja was an employee of the N Rly. He used to work in the Workshop No. 1 of the said railway. He secured a loan from the plaintiff -appellant which he could not repay during his life -time. After the death of PJD'souja the appellant instituted a suit against his mother Smt. Juli Lobbo as his legal representative for recovery of the loan amount and obtained a decree against the defendant on May 24, 1952, for a sum of Rs. 1432/. The decree was executable against the estate of the deceased PJD'soaja in the hands of his mother. The appellant filed an application for execution of the said decree and sought attachment of a sum of Rs. 1611.75 P. out of the total amount of Rs. 2300/ -, which belonged to the deceased PJD'souja and which was lying deposited in the Northern Railway Cooperative Credit Society, Ltd hereinafter referred -to as the Credit Society. The Court of execution passed an order of attachment under Order XXI Rule 52, CPC on July 15, 1954, but the Credit Society despite attachment sent the sum back to the Northern Railway on January 7, 1955 and sent an information to this effect to the court concerned. Thereupon, the executing court issued a notice to the Credit Society to show cause why the amount be not recovered from it by way of attachment of its assets. The credit society made certain objections on April 14, 1956, but they were rejected by the court of execution and the Credit Society was directed to send the amount in the court within one month. It appears that the Credit Society sought time to deposit the amount in the court but it failed to do so and again objected to the attachment but its objection was rejected on February 27, 1960. The court of execution thereafter sold the debt under attachment and it was purchased by the appellant for Rs. 400/ -, only on July 20, 1960 Accordingly, a sale certificate was issued to the appellant on September 30, 1960. Later on, the appellant brought a suit for recovery of the amount of Rs. 1675 00 as principal, Rs. 205. 50 P. as interest and Rs. 3 50 as notice expenses against the Credit Society on the basis of the sale -certificate after giving the Credit Society a demand notice for this amount. In response to the summons issued in the suit, the Credit Society appeared in the court and denied the claim of the appellant. The suit was resisted on several grounds. The main ground was that the amount in question was not attached by the court of execution in accordance with the provisions of Order XI, Rule 46, CPC and so it was returned to the Northern Railway oh January 7, 1955. As there was no valid attachment, the court of execution was not empowered to sell the amount at a public auction and the plaintiff could not acquire any right for the recovery of the amount on the basis of an auction sale thereof in his favour. It was further pleaded that the sale was not maintainable against the Secretary to the Credit Society as the Society was a registered one and the suit mast have been filed against it.
(3.) THE plaintiff -appellant, thereupon, amended the title of the suit with the leave of the court by striking out the word 'Secretary' therein so as to bring the suit against the Credit Society. In reply to the amended plaint the Credit Society further raised a plea of limitation contending that the suit against it was barred by time.;