Basheer Ahmed Sayeed, J.-This appeal arises out of the order passed by the learned District Judge of North Arcot, in E.A.No.19 of 1950 in E.P.No.15 of 1948 in O.S.No.71 of 1927 on the file of the Sub-Court, Vellore. The appellant is the 1st respondent in Application 19 of 1950. The first of the two respondents in the appeal before us was the petitioner in the lower Court.

The first respondent in his petition filed under section 47, Civil Procedure Code, prayed to the District Court that the, properties described in his petition which are comprised in Schedule A to the execution petition should be exonerated from liability under the decree in execution on the ground that the second respondent Kanniappa Mudaliar had no saleable interest in the suit properties and that the first respondent was entitled to the same by virtue of his purchase in Court auction held in E.P.No.2 of 1943 in the suit O.S.No.71 of 1927 on the file of the Sub-Court, Vellore. O.S.No.71 of 1927 was a suit for partition by two plaintiffs as against 10 defendants. A preliminary decree was passed on the 4th August, 1930 and against that decree an appeal was filed by the first defendant in the suit. The appeal was A.S.No.330 of 1930 on the file of the High Court. The first defendant in the suit also filed an application for staying of further proceedings in the suit which was C.M.P.No.3514 of 1930 and he prayed for staying the passing of the final decree as well on condition that the petitioner therein, namely the first defendant furnished security for Rs.12,000 to the satisfaction of the Sub-Court, Vellore. Further proceedings in the suit and the passing of the final decree appears to have been actually stayed on the acceptance of the security offered by defendants 1 and 2 and another. Meanwhile, both the first plaintiff and the first defendant died and plaintiffs 2 to 4 were impleaded as legal representatives of the first plaintiff. Similarly the second defendant was recognised as the representative of the first defendant. A final decree was passed on the 1st November, 1941, in which various sums were decreed to be paid by the second defendant to plaintiffs 2 to 4 as one group and to defendant 3 and 4 forming the second group. The direction in the decree material to the present appeal was the creation of a simultaneous charge over the shares of the second defendant in the immovable properties for payments of the amounts decreed to plaintiffs 2 to 4 and defendants 3 and 4 respectively.

Thereafter plaintiffs 2 to 4 filed E.P.No.2 of 1943 for recovery of a sum of Rs.25,958-13-0 as against the second defendant and their surety by sale of the charged properties as well as the properties covered by the security bond already referred to and prayed for other reliefs as well. Notice of this execution application was issued to the second defendant and to the 12th defendant who was the representative of the surety. Objections raised against the execution petition were heard and overruled by the Judge. The 12th defendant would appear to have deposited on the date of sale namely 11th September, 1944, a sum of Rs.12,000 in Court and consequently the sale of his properties which were offered as security appears to have been averted; but the other properties covered by the execution application were sold and the 1st respondent petitioner who is a stranger third party purchased them for Rs.15,500 at the Court auction. This sale was duly confirmed and a certificate of sale was issued on the 21st December, 1944. Under this sale certificate, the auction purchaser took possession of the properties and has been in enjoyment.

Thereafter the present appellant before us who was the first respondent in the lower Court obtained an assignment of the decree from the 4th defendant by a registered deed, dated 26th January, 1948. He became entitled to recover the sum due under the decree by virtue of this assignment and therefore he filed E.P.No.15 of 1948 for recovery of a sum of nearly Rs.60,

Click Here to Read the rest of this document