P. Subramonian Poti, J.

1. The plaintiff in a suit for declaration that plaint items 3 and 4 belong to him having failed in the court below, has filed this second appeal. It is necessary to state a few facts to understand the controversy between the parties. There are 5 items in the plaint schedule. These items belonged to one Ulahannan Punnose, father of defendants 1 to 5. Under a settlement executed by him the plaint properties were allotted to his wife with the stipulation that on her death item 5 was to devolve on the 5th defendant and items 1 and 3 together with items 2 and 4, they being the buildings standing thereon, were to devolve equally on defendants 1 to 5. Defendants 3 to 5 were conducting a chitty as foremen. The 14th defendant was a subscriber in that chitty. For paid up subscribptions he filed a suit O.S. 529 of 1107 and obtained a decree. In execution of the decree against the 3 foremen items 3 and 4 were purchased by him and delivery was obtained by him through court on 15-11-1950. Plaintiff purchased the said item from the auction purchaser. It may be remembered that the chittly foremen were only three out of the five children of Ulahannan Punnose and item 3 with item 4, the building thereon, which was sold in court auction devolved on all the children of Ulahannan Punnose on the death of their mother. First defendant who is one of the brothers of defendants 3 to 5 had filed O.S.525 of 1122 against defendants 2 to 5 and others for partition of these plaint schedule items. A final decree for partition was passed in March. 1958 Item 3 with item 4 building thereon which had been sold in court auction in execution of the decree against defendants 3 to 5 was allotted in the partition exclusively to defendants 1 and 2. It is alleged in the suit that the allotment of items 3 and 4 to defendants 1 and 2 under the partition decree was fraudulent and was intended to defeat the plaintiff from getting at these items, items, title to which was obtained by him under the court sale. It is therefore prayed in the suit that defendants 1 and 2 may be restrained from executing the partition decree in O.S. 525 of 1122, and taking delivery of these items. It is also prayed that, in the alternative, the plaintiff be allotted so much of the properties out of items 1, 2 and 5, so as to make up of the value of items 3 and 4. The suit was resisted by the first defendant who contended that the suit was not maintainable and plaintiff was not competent to impeach the decree in O.S. 525 of 1122. It was pleaded that the court auction purchase and delivery in O.S. 529 of 1107 were not binding on the first defendant as they were hit by lis pendens. The trial court accepted this plea and dismissed the suit. The appellate court by a judgment which, on a reading, makes very litte sense, dismissed the appeal. The plaintiff has come up in second appeal.

2. I agree with the trial court (I cannot agree or disagree with the appellate court as it is not easy to understand what is really said by the Judge) that plaintiff cannot seek declaration of title with regard to items 3 and 4. As the decree in O.S. 529 of 1107 was against defendants 3 to 5 alone and they are only 3 out of five joint owners, the decree must be subject to the result of the partition suit filed by any one of them who was not a party to O.S. 529 of 1107, and pending of the date of the court sale. The suit property was allotted in the partition decree to defendants 1 and 2, who were not bound by the decree in O.S. 529 of 1107. It is not shown that such allotment was vitiated by circumstances, such as fraud, alleged in the plaint. It so, the court sale will not operate to confer any title in the plaintiff as against defendants 1 and 2. Hence the relief sought for against defendants 1 and 2 to declare title to items 3 and 4 to restrain the defendants from executing the partition decree should fail.

3. Though the plaintiff thus fails in the main relief prayed for, the question whe