1. The facts which have given rise to this appeal are these:-
Certain properties including the property in suit formed the subject matter of a partition among four brothers defendants Now. 1 and 2, father of defendant No. 3 and one Venkatraman. At that partition the property in suit was given to their mother during her life-time for her maintenance. One Sheshgiri obtained a decree against defendant No. 2 and in execution of that decree he attached two lands, plaint serial Nos. 1 and 2. Kaveri, the mother of defendant No. 2, objected to the attachment and made an application for having the attachment raised on the ground that plaint serial No. 2 was in her possession; that she was entitled to retain it during her lifetime and that there was a charge thereon for certain sum to be paid by the brothers for her funeral ceremonies after her death. The allegation as to the other land was that it was subject to a charge of her maintenace at a certain monthly rate. This application was granted on the 16th of August 1901. Thereafter in the Darkhast of Sheshgiri an order was made on the 30th of October 1901 directing the sale of both the properties including the property, plaint serial No. 2 subject, to certain charges which were claimed by Kaveri in her application. The right, title and interest of defendant No. 2 in the property were put up for sale subject to the charges mentioned in the order of the 30th of October, and the plaintiff purchased the same. The sale was duly confirmed and apparently 110 objection was taken to the sale thereafter either by the decree-holder or the judgment-debtor. Kaveri died in 1915, and the auction-purchaser filed the present suit in 1917 for the partition of the property described as plaint serial No. 2 and claimed his one-fourth share which represented the interest of defendant No. 2 in the property. Defendants Nos. 1 and 2 contended that in fact there was no attachment of the property in question and that the sale in the absence of any previous attachment was void according to law. The defendant No. 3 did not appear; and defendant No. 4, who was a purchaser of the share of Venkatraman, claimed that on partition his one-fourth share might be assigned to him.
2. The trial Court found that the plaint property was released from attachment at the date of the sale, but that Court came to the conclusion that the sale was valid in spite of the absence of a formal attachment at the date of the sale. Accordingly a decree was passed in favour of the plaintiff allowing him his one-fourth share in the plaint serial No. 2 by partition. There was also a decree for past mesne profits and future mesne profits against defendant No. 2. The defendant No. 4 also was allowed under the decree to recover his one-fourth share by partition in the property.
3. The defendant No. 1 appealed to the District Court from this decree against the plaintiff and defendant No. 4. He did not join defendants Nos. 2 and 3 as respondents to his appeal. The appellate Court came to the conclusion that the property had been sold by the Court when it was not under attachment and that the sale was void in consequence of the absence of attachment at the time. The learned District Judge accordingly reversed the decision and allowed the appeal with costs.
4. In support of the appeal, which has been preferred from the decree of the District Court, it has been urged that the property was under attachment in fact when the execution proceedings relating to sale of the right, title and interest of the present defendant No. 2 went on in the executing Court on the Darkhast filed by Sheshgiri, that even if there was no attachment the sale was not void, and that under the circumstances of this case it was not open to the lower appellate Court to reverse the decree on the appeal of defendant No. 1 as defendant No. 2 had not joined him in the appeal.
5. We have heard the pleader for the respondent on the first and the last points, and in the view which we take of those points we have not considered it necessary to hear him fully on the -question as to whether the sale effected by the Court in the absence of any prior attachment would be valid or not.
6. It may be noted that in the appeal preferred to this Court by the plaintiff defendants Nos. 2 and 3 have not been joined an parties.
7. The first point to be considered is whether the lower Courts are right in their view that there was no attachment of the property which was put up for sale. The facts relating to this point are that the property was in fact attached in the first instance on the application of Sheshgiri, that there was subsequently an order on Kaveri's application and that later on in the Darkhast proceedings there was an order stating the effect of the order on Kaveri's application. If the effect of the order is correctly stated by the executing Court in its order of the 30th of October 1901 it seems to me that the property was duly attached at the time. To start with in this case there was an attachment of the property on the Darkhast of Sheshgiri. It is urged on behalf of the respondent that that attachment was raised by an order on Kaveri's application under Rule 60 of Order XXI. If the order stood by itself, there would be much to be said in favour of the view that the attachment was wholly raised so far as the property in question was concerned. But the order is very brief and it is quite clear that in its entirety it is difficult to apply it with reference to the other property which formed the subject-matter of that application and of the attachment. As regards the other property the claim of Kaveri was that it was subject to a certain charge. As regards the property now in question her claim was that she was in possession and that she was entitled to enjoy the property during her lifetime. No doubt in the application she proceeded to say that the defendant No. 2 had no right to the property. But it is clear that her meaning was that during her life-time he had no right to the property, and that it wan subject to a certain charge for her funeral expenses. In October 1901 when in executing the decree in favour of Sheshgiri the Court read this order as meaning that the right, title and interest of defendant No. 2 in the property was liable to be sold subject to the interest of Kaveri, which was stated in the order, it seems to me that the executing Court which had passed the order on Kaveri's application interpreted it in a manner in which it was reasonably capable of being interpreted. If the order had been in that form in terms, it seems to me that it would have been a valid order under Rule 60 which enables the Court to make an order releasing the property wholly or to such extent as it thinks fit from attachment. The order having been so interpreted by the executing Court and the prior attachment having been treated as being still in force, the property was put up for sale. In due course the plaintiff purchased the right, title and interest of the present defendant No 2 in the property. I do not see how it could be said that there was absolutely no attachment of the property in question. It is clear on the allegation of Kaveri in that application that the judgment-debtor had some saleable interest at the time; and though the order was in a general form, it was rightly understood by the executing Court to mean that the property was liable to be sold, subject to Kaveri's interest therein. I am clearly of opinion that the property was sufficiently attached and that all the subsequent proceedings including the sale of the right, title and interest of the judgment debtor were in order, and that there is no real basis 'for the objection that the sale is void in consequence of the absence of any attachment.
8. In this view of the matter it is not necessary to consider the interesting question as to whether in the abtence of an attachment a sale effected by the Court would be valid or not. In favour of its validity reliance was placed in the course of the argument upon the decision in Kishory Mohan Roy v. Mahomed Mujaffar Hossein I.L.R (1890) Cal. 188 and Malkarjun v. Narhari I.L.R (1900) Bom. 337. On the other hand in favour of the view that in the absence of any prior attachment the sale would be void reliance was placed upon the case of Balkrishna v. Masuma Bibi I.L.R (1882) All. 142 It is not necessary, as I have said, to express any opinion on this question as in my opinion the property was under attachment subject to Kaveri's interest at the material time.
9. The only other question which requires consideration is whether on the appeal of defendant No. 1 alone the lower appellate Court could have passed the decree now under appeal. It becomes necessary to consider that question as defendants Nos. 2 and 3 have not been joined as parties to this appeal. It would have been far more satisfactory if they had been joined as parties to this appeal quite apart from the consideration as to whether they were parties to the appeal in the lower appellate Court. In the trial Court the defendant No. 2 joined defendant No. 1 in raising the question as to the validity of the Court sale. But that Court decided the question against them, and defendant No. 2 did not appeal from the decree for partition, which was passed on the basis that his right, title and interest had been validly conveyed to the plaintiff. It seems to me under the circumstances that the defendant No. 2 not having appealed, it was not open to defendant No. 1 to object to partition on that ground. Admittedly the defendants were tenants-in-common and there could be no doubt that either defendant No. 2 or the person claiming to be the owner of his right, title and interest would be entitled to his share. Defendant No. 1 never contended that defendant No. 2 had no share in the property. Though it might appear that the point which he raised in the appeal was one which was raised in the trial Court, in view of the fact that defendant No. 2 did not appeal from that decree it cannot be said that defendant No. 1 could raise a point which it was open to defendant No. 2 primarily to raise and which by law omission to appeal he must be taken to have given up. It seems to me, therefore, that on the appeal of defendant No. 1 the decree of the trial Court could not have been properly reversed. In that view of the matter in spite of the absence of defendants Nos. 2 and 3 on the record of this appeal I have come to the conclusion that this appeal may be disposed of without further delaying the proceedings by directing defendants Nos. 2 and 3 to be joined MS parties to the appeal.
10. On these grounds I would allow this appeal, sot aside the decree of the lower appellate Court and restore the decree of the trial Court with costs of this appeal and in the lower appellate Court on defendant No. 1.
11. I concur.