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.