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Judgment
The facts of the case are as follows : In execution of a decree for money obtained against the second defendant who is the father of defendants
Nos. 3 to 5 and the undivided brother of the first defendant, the plaintiffs purchased-the undivided half share of the second defendant in the house
in dispute. Subsequently the first plaintiff purchased the first defendant''s share also. The present suit is to recover possession of the entire house. In
so far as the second defendant''s share was concerned the suit was dismissed on the ground that the proper remedy was by execution of the
decree u/s 244, Civil Procedure, Code. This view is not sustainable. The only right acquired by the Court sale against the second defendant was a
right to effectuate the sale by a suit for partition of the joint property of the co-parceners and the delivery to the plaintiffs of what might be allotted
to the share of the second defendant at the partition.
It was not competent to the Court in the circumstances of this case, on a mere application for execution by the purchaser to enforce the right of
the purchaser by an order partition. Consequently no orders of the kind contemplated by Section 318 Civil Procedure Code, could have been
passed in favour of the plaintiffs in the circumstances of this case. It follows that Section 244 could not have been a bar to a suit brought by these
plaintiffs for partition. The order therefore relied on by the Judge dismissing the application for the so-called delivery u/s 318 does not affect the
case. As after the purchase of the first defendant''s right the first plaintiff become entitled to the whole house against both the co-parceners whose
rights had passed to him, the decree dismissing the suit as against the second defendant is wrong. His sons, defendants Nos. 3 to 5, are bound by
the sale against their father, no case as to the nature of the debt entitling them to question the sale having been put forward.
We therefore modify the decree of the Judge by allowing the plaintiffs'' claim in its entirety with costs throughout.