An application under Order 21, Rule 58, C.P.C., to release properties from attachment in execution proceedings is barred by limitation if not made within 15 days from the date of attachment or sale, as prescribed under Rule 13 of the Rules under the Banking Companies Act, 1949.

ORDER :- This is an application filed by Padmalav Das, Madan Mohan Das and Gagan Behari Das, all sons of late Satrughna Das praying that, in the circumstances mentioned therein, certain properties attached and sold in Execution Case No. 1 of 1955 in execution of a decree brought by the Puri Bank against the judgment-debtor Krushna Chandra Das, should be excluded from attachment and sale on the ground that the properties belong to them and that the said Krushna Chandra Das had no interest in those properties. One Ananda Das died leaving behind him two sons, namely, Satrughna Das and Gandharba Das and Mukta Dei his widow. The three petitioners and the deceased judgment-debtor Krushna Chandra Das are the sons of Satrughna Das. Krushna died leaving behind him his widow Bimala Dei and two sons, namely, Niranjan and Manoranjan.

Krushna was the original judgment-debtor in Execution Case No. 1 of 1955. On his death on 12-10-1960, his mother Mukta, widow Bimala and two sons Niranjan and Manoranjan have been substituted as his legal representatives in the execution proceedings. Satrughna is now dead. The case of the petitioners is that sometime before the decree was obtained against Krushna Chandra Das by Puri Bank, he was separated from his father and brothers and relinquished his share in the joint family properties on receiving Rs. 400/- from Satrughna Das and that thereafter he had no connection with the family members nor had he any interest in the joint family properties. Whatever debts he had incurred from Purl Bank were incurred by him after his separation and for his personal business transactions and therefore the petitioners are in no way liable to discharge the same. In the joint family properties which stand in the name of Ananda Das, the common ancestor, Satrughna had eight annas interest and after the death of Satrughna, the entire eight annas interest had devolved on the petitioners. But in execution of the decree which the Puri Bank had obtained against Krushna Chandra Das, the entire eight annas interest had been attached and put up for sale. It is to set aside the sale that the present application has been filed.

2. The decree-holder Puri Bank has filed counter stating that the present petition filed by the petitioners on 14-12-1962 is virtually one under Order 21, Rule 58, C.P.C. to release the disputed properties from attachment made in Execution Case No. 1 of 1955 on 21-12-1955 and as such the petition is barred by limitation under the rules framed under the Banking Companies Act, 1949. The allegation of the petitioners that Krushna relinquished his share in the joint family properties on receiving Rs. 400/- from Satrughna is also denied. It is further contended that the business in connection with which Krushna had incurred loans which resulted in the decree under execution was a joint family business and all the members of the joint family including the petitioners are liable to discharge the debt. It is further averred that what was "the right, title and interest of the judgment-debtor" in the properties and it is this interest that has been put up for sale. The interest, if any, the petitioners may have in the properties had neither been attached nor put up for sale and as such they have no cause of action to file the petition which consequently is liable to be dismissed.

3. The first question for consideration is whether Krushna had separated from his father Satrughna and his brothers and relinquished his share in the joint family properties on receiving Rs. 400/- from his father. In support of this contention, three witnesses were examined on behalf of the petitioners including P. W. 1 Madan Mohan Das who is petitioner No. 2. He stated that a document was executed by Krushna in that connection but that document has not been filed in Court. According to him Anadi Swain and Gopinath Naik were present at the time of separation and are alive. But Gopinath has not been examined. Anadi Swain has been examined as P.W.