NARAYAN SADOBA HALVAI Vs. UMBAR ADAM MEMON

JUDGEMENT

(1.) The facts which arise in this second appeal for the determination of the question of limitation argued before us are shortly these. One Govind Sadoba obtained a money decree against one Haroo Hussan. In execution of that money decree the property in dispute was attached by the judgment-credit of. The present respondent-plaintiff intervened and applied to have the attachment raised on the ground that he was owner of the property.

(2.) Upon investigation of the claim under Sections 280 and 281 of the Civil Procedure Code the Court held that the property belonged to the judgment-debtor, not to the present plaintiff. But it also held, that the intervener was entitled to a lien on the property. Accordingly the Court passed an order that the property should be attached and sold, subject to the lien of the intervener. The property was sold subject to the present plaintiif s lien, namely, Rs. 687-11-3, and the defendant purchased it at the Court sale.

(3.) The plaintiif has now brought the suit to recover the amount of lien which, he contends, has been established conclusively by the order passed in the miscellaneous proceeding. The lower Court has allowed the claim. But it is contended before us by the defendant, the auction-purchaser, that he is entitled to question the existence of the lien ; that the miscellaneous order does not bind him; and that he was not bound to bring a suit to set aside that order after the sale within a year from its date. It has been held by this Court, in a series of cases, that under the circumstances mentioned above, the auction-purchaser cannot be regarded as a party to the miscellaneous order, being not a representative either of the judgment-debtor or of the judgment-creditor: see Vasanji Haribhai v. Lallu Akhu (1885) I.L.R. 9 Bom. 285 and Vishvanath Chardu Naik v. Subraya Shivapa Shetii (1890) I.L.R. 15 Bom. 290. Unless, therefore, the plaintiff brings this case within the principle of the decisions in Yashvant Shenvi v. Vithoba Sheti (1887) I.L.R. 12 Bom. 281 and Nemagauda v. Paresha (1897) I.L.R. 22 Bom. 640, his suit must fail. But these two decisions cannot apply here, because there the auction-purchaser was also the attaching creditor, and, therefore, the order was one which bound the parties to it and the suit was brought by the party who was unsuccessful in the miscellaneous proceeding.