The main legal point established is that the sale of properties belonging to co-owners in execution of a decree against only one co-owner is invalid, and a non-judgment-debtor in possession of the properties on their own account is entitled to seek redelivery under Order XXI, Rule 100. Additionally, an order in execution will not operate as res judicata against a party on whom notice of the execution was not duly served.

1. Decree-holder-auction-purchaser is the appellant in this second appeal. The second appeal relates to an order in execution. The suit was one for money. There were 12 defendants in the suit. The decree that was passed in the case made only the first defendant liable for the plaint claim. On 8-3-1125 the decree-holder applied for attachment and sale of first defendant's interest in two items of properties. The attachment was effected on 15-3-1125. On 22-4-1125 the decree-holder applied for proclamation and sale of the properties that were attached. In the schedule of properties filed along with the draft proclamation the interest that was sought to be proclaimed and sold was described to be the interests of the defendants and not of the first defendant alone, although what was attached was only the first defendant's interest. The first defendant was the guardian for the suit of defendants 5 to 12 who were minors. When notice of proclamation was issued to the first defendant he filed a statement to the effect that defendants 5 to 10 had attained majority. They were accordingly impleaded as majors and notices were issued to them. The notices issued to defendants 6, 7, 9 and 10 were served on the first defendant on the ground that those defendants were not in their house when the process-server went there to serve the notices. Copies of the draft proclamation were also not sent along with the notices. None of the defendants objected to the draft proclamation filed by the decree-holder and the properties were put up for sale on the basis of that proclamation. The decree-holder purchased the properties on 30-9-1950 for Rs. 125, 8 as. 2 pies and the sale was confirmed on 1-11-1950. The properties were delivered to the auction-purchaser on 14-11-1950. On 23-11-1950 the 6th defendant filed M.P. 3578 for getting aside the sale on the ground of fraud and material irregularity. On the same day he filed M.P. 3580 for re-delivery of the properties with mesne profits on the ground that the properties belonged to the defendants in common and that they were wrongly sold for the decree against the first defendant. M.P. 3578 was dismissed on the ground that it was barred by limitation. M. P. 3580 was allowed and the 6th defendant was directed to be put in possession of the properties. He was also awarded mesne profits at the rate of 141 paras of paddy a year from the date of dispossession. The appeal filed by the decree-holder-auction-purchaser from this order was discussed by the lower appellate Court. That Court however reduced the mesne profits to 30 paras of paddy a year.

2. It is not disputed that the properties sold in auction belong to the defendants in common. The first defendant is only one of the co-owners. Under the decree the first defendant alone was liable for the decree debt. The argument advanced on behalf of the appellant is that so far as the application for re-delivery is concerned the only question to be considered by the court is whether the interests of all the defendants have actually been sold in auction and not whether they could be sold under the decree. According to the learned counsel though it was wrong on the part of the court to have sold the rights of all the defendants in the properties when the decree was only against the first defendant and though the sale was liable to be set aside on that ground, yet so long as the interests of all the defendants were actually sold by the court, the 6th defendant is not entitled to get redelivery of the properties unless the sale is set aside. The question for consideration is whether, in a case in which properties belonging to persons who are parties to the suit but who are not liable to pay the decree debt are sold in execution of the decree against the judgment-debtor and delivered to the auction-purchaser, they can seek re-delivery under Order XXI, 'Rule 100. Order XXI, Rule 100 (1) provides:

"Where any person other than the judgment-debtor is dispossessed of