OMANA PANDALA AMPU PANDALA Vs. KESAVARU SAMBHUVARU NAMBOODIRI

JUDGEMENT

(1.) This Second appeal arises from proceedings in execution. The first appellant is the original decree holder and the second appellant claims to have obtained half of the rights under the decree by an assignment. The decree is one for recovery of property and also for recovery of mesne profits and costs. Recovery was prayed for against the illom represented by defendants, the first defendant being the karanavan and the second defendant the senior anadiravan. The suit was dismissed by the Trial Court, and this was confirmed by the appellate court. But in the second appeal the plaintiff was granted a decree holding that the plaint property belonged to the plaintiff and his mother, the 11th defendant in the suit, and the plaintiff was allowed to recover the property. Decree regarding mesne profits was also granite against the illom of first defendant. A further decree personally against the first defendant for recovery of mesne profits was also granted. During the pendency of the appeal before this court, S. A. 448 of 1951, the second defendant died and it appears that this was not noticed. In fact, the respondents in that appeal were only defendants 1 and 2. It is admitted that the parties are Namboodiries governed by the Travancore Malayala Brahmins Act III of 1106. S.12 of that Act provided that no decree shall bind on illom unless it is obtained against the karanavan as such and the senior anandiravan of his branch and that of every collateral branch, if any. When execution was taken out what was contended was that the decree cannot be executed since, during the pendency of the second appeal, the second defendant, who was the senior anandiravan, died and in the absence of the next senior anandiravan on the party array, the decree is not one in confirmity with the provisions in S.12 of the Travancore Malayala Brahmins Act 1106 and therefore, the decree is not executable. Regarding the execution of the personal decree against the first defendant for mesne profits, it was contended that such a decree cannot be executed so long as the appeal had abated as against the second defendant and the claim that could be urged as against the first defendant personally was one which cannot independently exist without the claim against the illom being alive. This contention did not find favour with the execution court, though it found that there is no decree binding on the illom and so far as recovery of property or mesne profits is concerned, it was unenforceable against this illom, but it allowed execution to proceed against the share of the first defendant in the properties comprised in the proclamation schedule, which were the items attached in execution of the decree as assets of the first defendant. The appellate court, in the appeal filed by defendants 1 and 3 held that the order of the court below in so far as it permitted execution against the first defendant cannot be sustained. It is that which is challenged in this appeal by the appellants.

(2.) The order of the Trial Court in so far as it went against the decree holder has become final, as there was no appeal against that before the court below. The only question raised before me in the second appeal concerns the right of the appellants to execute the decree as against the first defendant personally.

(3.) Though elaborate arguments were addressed before me by both sides on the consequence of failure to implead the legal representatives of one of the defendants when a joint decree has been prayed for and obtained, and the courts below have elaborately gone into this question, I find there is absolutely no scope for considering this in this appeal. What is urged on the basis of the decision in State of Punjab v. Nathu Ram ( AIR 1962 SC 89 ) is that when a suit abates as against one of the parties, against whom and the others still remaining on the party array a joint decree is prayed for, the suit must abate as against all the defendants. This stand is apparently taken on the basis of certain observations in the decision referred to by me. It is contended that if the suit is allowed to continue as against the surviving defendants it is likely to involve a decision in one way in regard to those, while by abatement as against the defendant whose legal representatives were not impleaded, the decision would be different in regard to such party and that in effect would be to give rise to conflicting findings. I do not think support for this view can be gained from the decision of the Supreme Court. But I need not go into this question. No question of abatement would arise in a case where the person who dies is on the party array in a representative capacity. Normally, the karanavan would represent a tarwad in any litigation and a decree with the karanavan on the party array would be binding on the tarwad. But, by the provision in S.12 of the Travancore Malayala Brahmins Act of 1106 a safeguard has been provided in the interests of the tarwad and that safeguard necessitates representation of the tarwad by the karanavan as such, the senior anandaravan and the senior anandaravan of every collateral branch. A senior anandaravan is impleaded in such a suit not as a person holding an estate, but as a representative of the tarwad. On his death, there is no question of impleading his legal representatives. The term "legal representative" is defined in S.2(11) of the Code of Civil Procedure as follows: