C K XAVIER Vs. KASI

JUDGEMENT

(1.) Plaintiff is the appellant. The appeal is directed against the judgment and decree in O.S. No. 137 of 1981 on the file of the Sub Court, Thodupuzha. The suit was for recovery of Rs. 13,770/- by sale of plaint schedule property on the strength of hypothecation bond.

(2.) 1st defendant borrowed Rs. 1,000/- from plaintiff on 7-6-1968 agreeing to pay interest at the rate of 12% per annum and to repay the amount after one year and he executed a hypothecation bond mortgaging the plaint schedule property as security for this amount, as evidenced by Ext. A1. The 2nd defendant is the wife of 1st defendant. Plaintiff filed O.S. No. 433 of 1978 in the Sub Court, Kottayam for recovery of the amount on the strength of the hypothecation bond. It was transferred to Sub Court, Thodupuzha and renumbered as A.S.No. 96 of 1978. Plaintiff filed an interim application for attachment of plaint schedule property. Thereupon, 2nd defendant who is the wife of 1st defendant filed a claim petition contending that the plaint schedule property belonged to her and that the 1st defendant had no right in the property. It was only then the plaintiff came to know that 1st defendant had no right in the plaint schedule property and that he practised fraud on the plaintiff. This in brief is the plaintiffs case as disclosed by the plaint.

(3.) In the written statement filed by the 1st defendant, he contended that the suit was barred by limitation and that the liability was discharged by payments on different occasions. It was also his case that no fraud was committed by him. The 2nd defendant also in her written statement, contended that the suit was barred by limitation and that the plaintiff had no cause of action against her.