CHINNASWAMY KOUNDAN Vs. ANTHONYSWAMI

JUDGEMENT

(1.) THE 1st defendant in O. S. No. 131 of 1950 of the Court of the Subordinate Judge of Chittur is the appellant before us. He challenges the correctness of the lower court's decision that the decree and sale in O. S. No. 213 of 1107 of the Munsiff's Court of Chittur are not binding on the 1/4th share of the plaintiff in the properties concerned in that suit.

(2.) THE prayer portion of the plaint according to the agreed translation reads as follows: "the Court may therefore be pleased to pass a decree: A. Setting aside, on declaring that the decree, the execution proceedings, sale, sale certificate and delivery proceedings in O. S. No. 213 of 1107 of this court are not binding on the plaintiff or on plaintiff's one-fourth share over the plaint schedule property and are void; B. Awarding the plaintiff separate possession of one-fourth share in the plaint schedule properties after partition by metes and bounds with future mesne profits at the rate of 1000 Paras of paddy and Rs. 375/-per annum; C. If for any reason the court is of opinion that the plaintiff cannot obtain the reliefs stated in paras [a] and [b] above mentioned, granting the plaintiff an alternative relief by directing such of the defendants as are found to be liable to pay the plaintiff Rs. 30,000/- as damages caused to the plaintiff as a result of the fraud in execution proceedings and sale in the above mentioned O. S. 213; D. Ordering the 5th defendant to pay past mesne profits for the years 1109 to 1116 both inclusive and the rest for the period from 1109 to 1123 both inclusive from the 1st defendant at the rate of 1000 paras of paddy and Rs. 375/- per annum; and E. Granting such reliefs which the plaintiff during the course of the suit may ask for and the court deem equitable to grant. " THE decretal portion of the judgment is: " (a) It is declared that the decree and execution proceedings which culminated in Ext. AA sale certificate in O. S. 213/1107 on the file of this Court are not binding upon the plaintiff and his 1/4th share of the equity of redemption over the plaint properties. [b] It is also declared that the hypothecation and the decree passed thereon in Ext. 6 suit are binding upon the plaintiff and the plaint properties. [c] It is also declared that the plaintiff is the owner of the 1/4th share of the suit properties and that he is entitled to a partition of the same by metes and bounds. [d] THE plaintiff is entitled to redeem his 1/4th share in the plaint properties on depositing the proportionate amount due upon the hypothecation and legally recoverable by the hypothecatee. [e] From the date of deposit of the plaintiff's 1/4th share of the mortgage money, the plaintiff will be entitled to get mesne profits for his 1/4th share at the rate found in Para. 36 above till the recovery of possession or 3 years from the date of the decree whichever event happens earlier. [f] THE plaintiff will get his costs from the 1st defendant. [g] THE plaintiff will apply for the issue of a commission for dividing the properties by metes and bounds within two months from the date of this decree.

(3.) THE execution proceedings in O. S. No. 213 of 1107 culminated in the sale certificate, Ext. AA, in favour of one Harihara subramonia Iyer. It is dated 12-3-1109. THE delivery receipts granted by Harihara Subramonia Iyer are Exts. II and III dated 22-3-1109.