PAULOSE VARGHESE Vs. BALAGANGADARA THILAK

JUDGEMENT

(1.) The suit in which this appeal has been brought was one for a declaration that the sale in execution of the decree in O. S. No 919 of 1111 or the District Munsiff's court of Irinjalakuda was void and for recovery of possession of the property on payment of the mortgage money, for the realisation of which the said decree was obtained. The immovable property which forms the subject matter of the suit belonged to one Velayudhan Nair who executed a simple mortgage for Rs. 1000 in favour of the first defendant. The latter sued in 0. S. No. 919 of 1111 for recovery or the mortgage money and obtained a decree. Velayudhan Nair applied for scaling down the debt under the Cochin Agriculturists Relief Act and the application was allowed. The decree holder preferred an appeal and while the same was pending in the District Court, Velayudan Nair died. His wife Karthiayini Amma and his children [plaintiffs 1 to 4 and deceased Radhakrisnan] were impleaded as his legal representatives. After the decision of the appeal the first defendant applied for execution in 1117 and the property was sold on 11 4 1118. The second defendant purchased the property in court sale and by successive transfers the same became vested in the third defendant. The fifth plaintiff in this suit is a child born to Karthiayini Amma after her husband's death and according to the plaintiffs, the fifth plaintiff was born on 3 12 1115. Karthiayini Amma became insane later and she died after the date of the court sale. The main grounds on which the plaintiffs seek relief are that Karthiayini Amma and her minor children were not properly represented in execution proceedings,that the fifth plaintiff was not brought on the array of parties, that Radhakrishnan, one of the sons of Velayudhan Nair died in Medom 1117 and his legal representatives were not brought on record, that the property was sold for a grossly inadequate price and that the sale was void. On those allegations the plaintiffs sought a declaration that the sale was inoperative. They also prayed for recovery of possession of the property with mesne profits on payment of the mortgage money.

(2.) The third defendant contended that the fifth plaintiff was an illegitimate child of Karthiayini Amma and was not entitled to any interest in the property, that Karthiayini Amma and the minor children were properly represented in the execution proceedings, that Radhakrishnan did not die in 1117 and that the sale was properly conducted. The third defendant died during the pendency of the suit in the lower court and his legal representatives were impleaded as defendants 4 to 7 and 9 to 12. The fourth defendant filed a written statement adopting the contentions of the third defendant and further contending that he was the sole heir of the third defendant.

(3.) The court below held that Karthiayini Amma and her minor children were properly represented in execution proceedings, that the fifth plaintiff was the daughter of Velayudhan Nair born 0:1 3 12 1115, that the omission to implead her in execution rendered the sale void, that Radhakrishnan died in Medom 1117, that his heirs were not impleaded and that the property was sold for a grossly inadequate price. The sale in respect of the entire property was therefore declared to be void and inoperative and the plaintiffs were given a decree for recovery of possession of the property with mesne profits on payment of the mortgage money and interest as well as value of improvements effected by the third defendant. Defendants 4 to 12 have therefore preferred this appeal and the plaintiffs have filed a memorandum of cross objection objecting to the finding against them and claiming that the decree should be drafted in accordance with the judgment.