N.K. Balakrishnan, J.

This Appeal is filed by the 3rd defendant in a suit for partition. A preliminary decree was passed by the trial Court. Appeal filed by the appellant herein was dismissed by the appellate Court. Admittedly the plaint schedule property originally belonged to Ramu the husband of deceased Kalyani and the father of plaintiffs 2 to 4 and the first defendant. A suit was filed earlier by the first defendant one of the sons of deceased Ramu against the 2nd defendant. (That suit is unconnected with the suit property). That suit was dismissed. For realisation of the cost the 2nd defendant brought the plaint schedule property for sale. The property was sold in court auction. It was purchased in auction by the 2nd defendant and her mother. The sale was confirmed and the sale certificate was issued. Though a petition was filed under Order XXI Rule 90 as E.A. 89/1985 to set aside the sale, that application was dismissed. Thereafter, a suit O.S. 503/1986 was filed to set aside the sale. That suit was also dismissed. It is thereafter, the present suit was filed for partition as O.S. No. 42/1994.

2. The 3rd defendant contended that since the property was sold in court auction and was subsequently assigned to him by D2 and her mother (the auction purchaser) the present suit for partition is barred by res judicata. It was also contended that the plaintiffs are estopped from contending that they have got right over the property. These contentions were negatived by the trial Court. Appeal filed against the same was dismissed.

3. The Suit O.S. 84/1982 was filed by the first defendant against the 2nd defendant. The 2nd defendant filed execution petition for realisation of the cost awarded in that suit and for that purpose the plaint schedule property was put up for sale. It is not in dispute that the 2nd defendant and her mother purchased the property in court auction. But it is important to note that it was only the right of the first defendant over the plaint schedule property that could be sold in court auction. Admittedly the property belonged to Ramu. So, Nakulan, the first defendant had only 1/6 share in the property. Therefore, by virtue of the court auction the 2nd defendant and her mother could obtain only 1/6 share in the said property. It is true that a petition was filed under Order XXI Rule 90 stating that the sale is vitiated by fraud and also to set aside the sale. Ext. A6 is the certified copy of the application filed in E.A. 89/1985 and Ext. A7 is the certified copy of the order passed in that application.

4. The learned Munsiff has rightly found that Ext. A7 would only show that the petition under Order XXI Rule 90 was dismissed on the ground that it was filed out of time. It was also observed that the interest of the petitioners in that application was not affected by the sale evidently because the confirmation of the sale and issuance of the sale certificate would only be in respect of the judgment debtor's right over the said property and not of the right of other parties. The judgment debtor had only 1/6 share in the said property as on that date. So, the auction purchaser could get only 1/6 share in the said property. Therefore, the contention that the dismissal of E.A. 89/1985 would operate as res judicata was turned down by the trial Court. Similarly though O.S. 503/1986 was filed that was dismissed on the ground that E.A. 89/1985 was already dismissed. That also will not take away the plaintiffs' right over the plaint schedule property. By virtue of the dismissal of E.A. 89/1985 and O.S. 503/1986, the petitioners therein (the plaintiffs in the suit) cannot contend that the sale is vitiated or that the sale did not take place. But that does not mean that the auction purchaser could get right over the entire property. The auction purchaser can get only the right which the judgment debtor had over the property which was put up for sale and not anything more. There is no warranty of title nor can it b