Varadachariar, J.

1. This is an appeal by the defendant in a suit instituted for partition and recovery of possession of a half share of the suit properties on the ground that the plaintiff had purchased in Court auction, the right, title and interest of the defendants brother, who according to the plaintiff was entitled to a half share in those properties. The Court auction was held in execution of a decree obtained on a promissory note said to have been executed by the first defendants brother, the deceased Pakkiri Mohideen Rowther and his wife. When the plaintiff attempted to take possession as execution purchaser, the defendant resisted delivery alleging that he had obtained a sale of his brothers half share from his widow. On that obstruction, the plaintiff filed E.A. No. 367 of 1932 and it is alleged in paragraph 5 of the plaint that that petition was heard and an order was passed thereon by the Court on 13th October, 1932, to the effect that the sale obtained by the defendant was not supported by any consideration, that the defendant had no manner of right to the half share of his deceased brother and that the same should be delivered to the plaintiff. The plaint adds