Applicability of constructive res judicata to execution proceedings.

M. Natesan, J.

1. This second appeal by the defendants arises out of a suit for declaration of the plaintiffs' title to the suit property, a house in Tirumangakm, Madurai District, and for possession of the same from the defendant, a Court auction-purchaser in execution of a simple money decree. The plaintiffs had been parties to the execution proceedings which led to the sale, having been brought on record as legal representatives of the original judgment-debtor, their father. While the trial Court dismissed the suit as barred by res judicata and Section 47, Civil Procedure Code, on appeal this plea was overruled and the suit decreed.

2. The suit property stood in the name of one Lakshmi Ammal by a sale deed, dated 6th September, 1924. The plaintiffs are daughters of this Lakshmiammal and their father is one Guruswami Nadar. This Guruswami Nadar othied the property in favour of Mahalinga Nadar, son-in-law of Gurusami Nadar and husband of the first plaintiff, for Rs. 1,000 on 8th July, 1953. Mahalinga Nadar obtained a money decree against Gurusami Nadar in O.S. No. 118 of 1956 on the file of the District Munsif's Court, Tirumangalam, for moneys due, and in execution of the decree attached the suit property and brought it for sale. Pending the execution proceedings, Gurusami Nadar died and his sons and the present plaintiffs, his daughters, were brought on record as legal representatives of the judgment-debtor in E.A. No. 32 of 1959, dated 6th June, 1959. The plaintiffs, though served with notice remained ex parte. The suit property was duly proclaimed and the present defendant became the purchaser of the property in Court auction-sale held on 12th December, 1960. The sale was duly confirmed on 17th January, 1961. The purchase by the defendant was subject to the othi in favour of Mahalinga Nadar on 8th July, 1953. The defendant, on his purchase, deposited the othi amount in Court under Section 83 of the Transfer of Property Act, impleading Mahalinga Nadar as respondent. On his death, he filed another application O.P. No. 26 of 1961 impleading the 2nd plaintiff, wife of Mahalinga Nadar, and her sons. On their remaining ex parte to the application the defendant filed a suit O.S. No. 11 of 1962 on the file of the District Munsif's Court, Tirumangalam, for redemption of the othi. To this suit, naturally he made the legal representatives of Mahalinga Nadar--his wife and sons--as parties. They remained ex parte and a decree for redemption was passed on 16th February 1962. Pursuant to the decree, the defendant, having deposited the othi amount, applied for delivery of possession of the property in E.P. No. 207 of 1962 and secured possession of the property on 2nd July, 1962.

3. It is after all these the plaintiffs have come forward with the present suit on 26th September, 1962. Their plea is that as heirs of Lakshmi Ammal, the property belonged to them. The defence, on the merits, has been that the property was purchased by Gurusami Nadar benami in the name of his wife. But right through he has been exercising dominion over the same. But the plaintiffs have a judgment in their favour recognising the title of their mother to the property. The 2nd plaintiff herein, asserting the title of the daughters, that is, herself and the 1st plaintiff, to the suit property as heirs of Lakshmi Ammal, instituted the suit O.S. No. 195 of 1957 on the file of the District Munsif's Court, Tirumangalam. She filed the suit for partition and separate possession of a half share for herself in the suit property impleading as defendants to the suit her father, Gurusami Nadar and the mortgagee Mahalinga Nadar as defendants 1 and 2 and her sister and co-sharer as 3rd defendant. She impugned the validity of mortgages executed over the property by her father. The suit included other items and there was another mortgage executed by the father in favour of Mahalinga Nadar over items 2 and 3 in that suit. The alienation by Guruswami Nadar in favour of Mahalinga