Judgment

RAY, J. : This appeal is by special leave from the judgment dated 21st March, 1966 of the Madras High Court dismissing the appeal preferred by the appellant against the decree holders application for execution of the decree.

2. The appellant is one of the judgment-debtors brought on record as legal representative of a deceased judgment-debtor Lala Baijnath Prasad. Respondent No. 1 Lakshman Prasad Gupta was one of the plaintiffs. Pratap Chand and Basudeb Prasad respondents Nos. 2 and 3 respectively are the sons of a judgment-debtor Girdharilal Agarwala.

3. The plaintiff respondent Lakshman Prasad Gupta was married to the sister of Lala Bansilal. Bansilal belonged to the joint family which consisted inter alia of the appellant s father. There were five branches of the said joint family of the judgment-debtors, three whereof were at Banaras, Calcutta and Naini and the other two were the branches of the descendants of Mohanlal and of Lala Baijnath Prasad, father of the appellant, respectively. The said joint family had valuable properties in and around the town of Arrah in Bihar. There are alleged to be valuable properties of the joint family also at Allahabad, Banaras, Bombay, Calcutta and Madras.

4. Some time in the year 1926 Lala Pratap Chand, one of the descendants of Mohanlal who was a grand-uncle of Lala Bansilal filed a partition suit in the court of the Subordinate Judge at Allahabad. A preliminary decree was passed in the said partition suit on 14th February, 1927. An appeal was preferred and it was dismissed. An amicable settlement was arrived at in the partition suit on 13th January, 1931 for partition of the properties into five equal lots and allotment of the shares. Thereafter a Commissioner was appointed in the partition suit to go into accounts and prepare five lots. The branches inter se raised disputes as to liability for loans alleged against the joint family. The Commissioner prepared his report on 18th May, 1936. Final decree was passed on 13th January, 1939. An appeal was preferred against the said final decree in the partition suit to the High Court at Allahabad. The appeal was disposed on 6th December, 1949.

5. The plaintiff Lakshman Prasad Gupta and six others filed suit No. 76 of 1937 in the Court of the First Subordinate Judge at Arrah in Bihar and obtained a decree on 20th July, 1938 for Rs. 18,540 and for costs Rs. 1,840/4/- aggregating Rs. 20,380/4/-. This decree was against Banwarilal and other members of the joint family to which the appellant s father belonged. The decree was transferred from Arrah to the Court of the Civil Judge at Allahabad where on 2nd June, 1941 the decree-holder commenced execution proceedings marked as Execution Petition No. 38 of 1941. In that execution petition the decree-holders prayed for attachment and sale of Shri Krishna Desi Sugar Works at Jhusi known as the Jhusi Sugar Mills in the District of Allahabad which belonged to the joint family.

6. The execution proceedings were according to the decree-holders stayed under orders of the Allahabad High Court and after the stay order was vacated the execution proceedings were revived on 13 May, 1950. The Jhusi Sugar Mills was attached on 11th July, 1952 and it was sold on 19th February, 1955. The sale was set aside on 31st May, 1955 pursuant to objections of the judgment-debtors that the Jhusi Sugar Mill could not be sold because of the provisions of the U. P. Encumbered Estates Act, 1934. It may be stated here that some time in the month of September, 1935 Baijnath Prasad filed an application before the Collector of Allahabad for protection and relief under the U. P. Encumbered Estates Act of 1934 and it was registered as Encumbered Estates Suit No. 25 of 1935.

7. Thereafter the decree-holders on 17th March, 1956 made an application in the Arrah Court for transfer of the decree. On 6th June, 1956, the Subordinate Judge at Arrah transferred the decree to the Madras High Court. On 13th August, 1956 the decree-holders filed