Other Co-sharer if can apply.

This is a petition to revise the order of the Subordinate Judge, Madurai, dismissing an application preferred by the petitioners under Order 21, rule 100 of the Civil Procedure Code as incompetent. The properties which are the subject-matter of these proceedings are lands which were purchased by the second respondent Ramaswami Naicker, at a sale held by the Madurai-Ramnad Central Co-operative Society. The first respondent Soundaravalli Ammal filed O.S. No. 109 of 1947, Subordinate Judge’s Court, Madurai, for recovery of these and other properties on the ground that they formed part of the Valayapatti Zamin, and that she became entitled to them as reversioner. Ramaswami Naicker was impleaded as the 76th defendant in that suit and though he filed a written statement raising several pleas, he eventually abandoned the contest and an ex parte decree was passed against him. In execution of that decree, the first respondent obtained possession of the lands. The petitioners thereupon filed E.A. No. 443 of 1949, under Order 21, rule 100 of the Civil Procedure Code and as the point for decision in this revision is whether this petition as framed is maintainable, it is necessary to set out the allegations contained therein. The averments in the petition are that the two petitioners are brothers of the second respondent that they are all members of a joint undivided Hindu family; that the lands in question were purchased with joint family funds, though the sale deed itself was taken in the name of the second respondent, that accordingly the petitioners were entitled to two-third share therein, that though the second respondent was the eldest member,. he was not the manager of the joint family and that in consequence the decree passed against him in O.S. No. 109 of 1947 and the execution proceedings taken thereunder were not binding on them. The petition then alleges that the first respondent

"managed to get an endorsement on the delivery warrant as if the properties in the schedule had been delivered to her; there has been no real delivery and the delivery if any cannot bind the petitioners who are not parties to the suit“

and that:

”though actual delivery has not been made and though the delivery cannot affect the rights; of the petitioners, the petitioners apprehend that the return of delivery on the warrant of delivery might be improperly used for the purpose of ousting the petitioners from possession of the properties. The prayer in the petition is that “this Honourable Court should be pleased to hold, if it is of opinion that there has been actual and effective delivery of the properties to the first respondent, that the delivery cannot affect the rights of the petitioners to possession of the schedule properties, order re-delivery of the same to the petitioners and direct the first respondent to enforce her rights if any against the second respondent by means of a partition suit”.

The Subordinate Judge dismissed the application on the preliminary ground that, as the petitioners contended that there had in fact been no dispossession, it was not maintainable under Order 21, rule 100.

The petitioners question the correctness of this order. They contend that it proceeds on a misapprehension of the true scope of the person that while the stand taken by the petitioners was that there was no dispossession they also prayed for an appropriate relief if it should turn out that in fact there had been real delivery; that what was claimed in the petition was, therefore relief in the alternative and that that was in law competent; and that the order of the Subordinate Judge dismissing the petition without any enquiry is in consequence illegal. In support of this contention the decision in Jagannath v. Fasiuddin1, was relied on. There, the facts were that in execution of a decree for possession against the judgment-debtor who owned 7/72 share in an estate, the decree-holder took delivery of the whole of certain plots. The co-owners of the jud