MUNDYAPPU HENGSU Vs. SAMPA ALVATHI

JUDGEMENT

(1.) On May 25, 1945, a certain Aithappa Alva granted a mortgage to the decree-holder Pinto of three items of properties belonging to him for securing repayment of sum of Rs. 9,000/-. In the year 1948, under Exhibit B2 there was a settlement of one of the properties belonging to Aithappa in favour of his sister. After this settlement, Aithappa died and Pinto brought a suit for the recovery of the amount due 'under the mortgage against the legal representatives of Aithappa who were Aithappa's widow, his children and his sister. A decree was made in that suit and when Pinto wished to execute the decree and asked for a sale of the mortgaged properties the widow and children asked for an order that the property which was settled on the sister should be sold in the first instance. There was also a prayer by the sister that the other properties should be sold in the first instance. On these applications the Munsiff made an order that the properties of the widow and children should be sold in the first instance and the property settled on the sister should be sold next.

(2.) From this order made by the Munsiff there was an appeal to the District Judge who was of the view that the appeal was an incompetent appeal. He therefore dismissed the appeal. But having dismissed the appeal he proceeded to consider the appropriateness of the direction made by the Munsiff. The district Judge was of the view that the direction made by the Munsiff was in the circumstances one which required to be reconsidered. He pointed out many infirmities in the discussion made by the Munsiff and ultimately wound up his order with an observation that the Munsiff would do well to bestow his thought to the many aspects of the matter pointed out by the District Judge and make a suitable direction in lieu of the direction which he had already made.

(3.) Both sides were dissatisfied with the order made by the District Judge. The widow and her children who are the appellants in Second Appeal 71 of 1964 ask me to say that the direction made by the Munsiff that their properties should be sold in the first instance was an unsustainable and unsupportable direction. They ask for a direction in their second appeal that the properties settled on the sister should be sold in the first instance.