The words used in O.21, R.59, Civil P.C., must be liberally construed, and the evidence which is expected to be adduced by the party applying under R.58 is not necessarily by reference to himself but it may and can be by reference to his predecessor in title.

GAJENDRAGADKAR, J.:- Who is entitled to make an application for setting aside the attachment levied in execution proceedings; that is the short question which arises this second appeal. Its decision would depend upon the construction of the provisions contained in Rr.58 and 59 of O.21, Civil P.C. This question arises in this way.

The property in suit is a land. It originally belonged to three brothers-Vishwanath, Vaman and Vinayak. In 1903 a partition took place between the brothers as a result of which Vishwanath separated from the family. Though at this partition the sheres of all the three brothers were determined and divided, it appears that two brothers-Vaman and Vinayak-continued to remain joint. At this partition the property in suit was kept joint.

It is common ground that in this property the family was entitled to a 1/3rd share; so that the three brothers would be entitled to a 1/9th share each. In 1905 Vaman died. Vamans share devolved upon Vinayak, since the two were living in jointness.

In the property in suit Vishwanath was entitled to a 1/9th share, and Laxmibai-Vinayaks widow- who inherited the property on Vinayaks death in 1918 was entitled to a 2/9th share. On 4-2-1938, Laxmibai purported to sell a 1/3rd share in this property to defendant 6. It is clear that all that she could have conveyed to the purchaser was 2/9th share of the property and not 1/3rd.

One Joshi obtained a money decree against Vishwanath in Civil Suit No.363 of 1933. In execution of this decree he filed darkhast No.617 of 1937. On 15-4-1937, at the instance of the decree-holder 1/3rd share in the property in suit came to be attached as belonging to the judgment-debtor Vishwanath. On 23-3-1938, the purchaser from Laxmibai, who is defendant 6 in the present suit, applied to set aside the said attachment, on the ground that the judgment-debtor Vishwanath was entitled only to 1/9tn share and not 1/3rd share as alleged by the decree-holder On 28-8-1939, the application made by defendant 6 under O.21, R.58, came to be dismissed.

Thereafter the property which was attached in execution was put to sale, and the plaintiff became the auction purchaser; and on 5-9-1940, a sale certificate was issued in his favour. It is as an auction purchaser of the property in suit that the plaintiff has filed the present suit on 25-11-1944, in which he claims possession of his 1/3rd share of the property in suit by partition by metes and bounds. Defendant 6, who is the purchaser from Laxmibai, resisted this claim on the ground that Vishwanath was entitled only to 1/9th share in this property, and so the auction purchaser cannot get any better title than that of Vishwanath.

This plea was met by the plaintiff on the ground that an application had been made by defendant 6 challenging the validity of the attachment of 1/3rd share in the property in darkhast No.617 of 1937; the said application had been dismissed; and no suit had been filed within one year from the date of the dismissal of the said application. In consequence the order passed in those proceedings has become conclusive under the provisions of O.21, R.63, Civil P.C.

When the plaintiff sought to raise this difficulty in the way of defendant 6, he replied by alleging that it was held in those proceedings that he was not competent to make an application, and the order which was passed on this ground could not attract the provisions of O.21, R.63. That is how the principal question which has arisen in the present suit and therefore in the second appeal is, whether defendant 6 could have applied challenging the validity of the attachment levied against the 1/3rd share in the suit property under O.21, R.58.

Incidentally we may also have to consider, whether the order which was passed on the application preferred by defendant 6 under O.21, R.58, attracts the provisions of O.21, R.63.

2. It is common ground that if the provisions of O.21, R.63, apply, then it would not be open to defendant 6 to raise the contentio