The main legal point established in the judgment is that the applicability of s.47 and r.90, Or. XXI, Civil P.C., depends on the specific circumstances of the case and the representation of the parties in the execution proceedings.

Findlay, O J C—The plaintiff (respondent No. 1) Kalicharan sued the defendant (appellant) No. 1 Kanhairam and the defendant-respondent No. 2 Karu in the Court of the Subordinate Judge, 1st class, Bhandara, for possession of 4/5ths of a share of a house in mouza Gondia and for damages in respect of the occupation thereof. The plaintiff's case was that the house was his ancestral property and that he had filed a suit for partition of this and other property, in which a decree was passed on 30th October 1922, dividing the property as follows:-

The plaintiff and his brothers Karu and Sukhdeo each one-fifth.

The plaintiff's mother one-fifth.

The plaintiff's 4 sisters one-fifth.

2. Subsequently, Sukhdeo, plaintiff's mother and his 4 sisters sold their 3/5th share to him by a registered sale deed, dated 22nd February 1923. The plaintiff thus became owner of four-fifths of the house and, relying on this, attempted to take possession on 23rd February 1923 when he was resisted by the first defendant. Defendant 1 Kanhairam is said to be in possession since 18th April 1921 having purchased it at an auction-sale held in execution of the decree in Civil Suit No. 69 of 1917, passed in favour of one Jagannath against Karu and others. The plaintiff's case was that the sale took place during the pendency of his partition suit and that defendant No. 1 is accordingly bound thereby and cannot acquire any title to the house except as regards one-fifth share belonging to Karu.

3. The suit proceeded ex parte against the 2nd defendant Karu. The first defendant Kanhairam took up the following position. He denied that the plaintiff, Karu, Sukhdeo and others were members of joint family or that the house in suit was a joint family property. He pleaded that Suit No. 84 of 1917 was a collusive one between the members of the family, and denied the alleged sale by plaintiff's relations in his favour of the 3/5bh house. As regards the defendant 1's purchase of the house, this was effected on 18th April 1921 at a price of Rs. 4,500. He further pleaded that the plaintiff's remedy, if any, was to have proceeded by an application under s. 47 of the Civil P.C. He further alleged that the house belonged to Kara alone.

4. On those connected pleas the lower Court framed issues and came to the following findings:-

(a) That the house was the ancestral property of the plaintiff and defendant No. 2 Karu.

(b) That it was duly partitioned by the decree in suit No 84 of 1917.

(c) That the attachment, sale and purchase of the house by defendant No. 1 occurred during the pendency of the said suit.

(d) That Kanhairam only by his purchase obtained the right, title and interest in the 1/5th share of the house as allotted by the partition decree to Karu.

(e) That the plaintiff failed to prove his purchase of 3/5th share in the house from his mother, sisters and brothers.

(f) That there was no room in the previous execution proceedings for the application of r. 89 or 92 of Or. XXI, Civil P.C. Under that sale Kanhairam only received Karu's 1/5th share, while the plaintiff's suit relates to the remaining 4/5th share.

(g) That there was no proof of Karu having been in adverse possession of the entire house for 12 years before the institution of the suit.

(h) That for reasons already given action under s.47 of the Civil P.C. was not open to the plaintiff in the execution proceedings and that consequently the present suit lay.

5. On these and connected findings a decree in respect of one-fifth share of the house and for Rs. 80 damages was passed in favour of the plaintiff, and the first defendant Kanhairam has now appealed to this Court.

6. The line of attack adopted on behalf of the appellant may shortly be summarised as follows. It is alleged that the plaintiff was a judgment-debtor in the decree in execution of which the house in suit was attached and sold. This is admittedly so and accordingly the appellant's position is that the remedy for excluding any portion of the property sold from t