GEORGE KUTTY Vs. OUSEPH VARKEY

JUDGEMENT

(1.) The plaintiffs in O.S.130/84 before the Sub Court, Kottayam are the revision petitioners.

(2.) The petitioners were sureties for the transactions, one Mathew Joseph was alleged to have had with certain strangers in connection with procuring of jobs for them at his place of employment. The case of the plaintiffs is that Mathew Joseph failed to get employment to those persons and therefore the petitioners, being the sureties had to repay the said persons the monies, Mathew Joseph had taken from them. To recover the monies thus repaid, the petitioners filed the suit, O.S.130/84 against Mathew Joseph. The suit was decreed ex parte on 1-12-1984. The petition to execute the decree was filed in 1987 is E.P.45/87. The respondent herein one of the legal representatives of Mathew Joseph filed E.A941/88 in the E.P. for a declaration that the decree is incapable of execution as the same was obtained against a dead person. He in support of this contention pressed into service S.107 and 108 of The Indian Evidence Act. The court below after considering the various aspects of the said contention has, by the order under challenge, declared that the decree is incapable of execution.

(3.) That the parties had approached this court once before, can be seen from the order in C.R.P. 42/1989. The court, as is seen from the said order dated 22nd February, 1989 set aside the order of the executing court refusing to decide the issue namely whether the decree is void and hence not capable of execution, on the ground that there was no prayer in the petition for such a declaration and remanded the said issue to the executing court for a disposal on merits. The following except from the order gives a true picture of the respective case set up by the parties and considered by this court.