PHILIPOSE Vs. HARIHARA IYER

JUDGEMENT

(1.) This second appeal raises two nice questions relating to the law of execution. The decree is one passed on foot of a hypothecation bond executed by Defendants 1 and 2 and the decree directed realization of the amount by sale of the hypotheca and personally from the two defendants. While the decree was being executed, but before any amount was realized thereunder, Defendant 1 died and the decree holder (respondent herein) brought the present appellant and his younger brother on the record as legal representatives. The appellant disputed the right of the decree holder to sell certain items comprised in the hypotheca on the ground that under a partition arrangement evidenced by Ext. 1, dated 1.8.1100, Defendant 1 had divested himself of all interests in those items and that his (the appellants) younger brother and himself had long become the absolute owners thereof when the suit was brought ten years afterwards in 1100. Accordingly it was contended that the northern one-half of item 1 and items 2 to 5 of the decree could not be proceeded against in execution as the decree holder obtained the decree without the real owners of those items on the record. The execution Court repelled the objection on grounds which are really untenable. That Court stated that as these items stood charged for the debt and since the partition deed admitted the debt the objection cannot be sustained. The present appellant preferred an appeal before the Kottayam District Court against that order and the learned Second Judge of that Court who heard it upheld the objection with respect to items 1,2, 4 and 5. As regards item 3 the learned Judge held that that item was not allotted to the appellant or his brother under the partition arrangement referred to. The present second appeal relates to the lower appellate Courts order regarding item 3. The decree holder has preferred a memorandum of cross objections challenging the lower appellate Courts decision regarding items 1, 2, 4 and 5. The objection which the appellant raised before the execution Court is therefore before us in its full form.

(2.) The only question raised for decision by the appeal is whether item 3 also went to the share of the appellant and his brother under the partition deed, Ext. 1. Mr. P.H. Sankaranarayana Iyer, the learned counsel for the decree holder respondent, however raised two nice questions. One was that the second appeal itself was incompetent and the other was that the legal representative of a deceased judgment debtor could not in execution proceedings set up a paramount or independent title to the properties directed to be sold by the decree. It is convenient to deal with the second question first, but it may be stated here and now that we cannot accede to the first point. We shall state the reasons later. For obvious reasons to uphold the preliminary point will be more harmful to the respondent than to the appellant. If the second appeal is incompetent so will be the memorandum of cross objections.

(3.) The point that where a decree for sale of mortgage property is passed against a mortgagor and on his death, his legal representative is brought on record, an objection that the property belonged to the legal representative (and not to the mortgagor) cannot be enquired into by the execution Court was raised in this case for the first time when the second appeal was heard. Even the memorandum of cross objections did not refer to this point. However as it is a pure question of law we allowed that to be raised and heard arguments from both sides with reference to it.