MUHAMMATHU KUNJU Vs. MUHAMMATHU KUNJU

JUDGEMENT

(1.) This is a decree holders appeal. In O.S. No. 89 of 1101 on the file of the District Court, Alleppey, the appellant obtained a money decree against one Mytheen Kunju on foot of a hypothecation bond. Though the suit was to enforce a hypothecation an attachment before judgment was taken out by the appellant of certain immoveable properties on the footing they belonged to the defendant. Immediately the defendants children (four in number) came forward with a claim in C.M.P. No. 5529 of 1101 that the attached properties were not liable to be proceeded against for any debt the defendant might owe, in that they (the claimants) had obtained full title to and possession of those properties under a registered udampady dated 22.8.1100 and that the defendant had no subsisting interest thereto. That claim petition was allowed to lie over until after the passing of the decree which took place on 14.3.1103. It is this decree which is now under execution.

(2.) Soon after the decree was passed, to be precise, on 18.6.1103 the appellant filed an execution application in E.P. No. 279 of 1103 for bringing the hypotheca and the properties attached before judgment to sale. The claim was enquired into after this petition came and on 20.6.1104 the court passed an order allowing it. The appellant then filed O.S. No. 36 of 1105 before the lower court to set aside that order and for a declaration that the udampady or partition arrangement on which the claimants rested their title and possession was executed in fraud of creditors. The lower court allowed the suit and set aside the order passed on the claim petition. That decision was given on 1.2.1110. The contesting defendants to the suit viz., the claimants preferred an appeal against it before the High Court of Travancore in A.S. No. 366 of 1110.

(3.) Meanwhile E.P. No. 279 of 1103 happened to be dismissed and Mytheen Kunju, the judgment debter, died not long afterwards. A fresh execution petition was filed on 2.6.1110 impleading the four claimants as legal representatives of the deceased and in that application it was prayed that the properties attached before judgment may be brought to sale. The claim order had, as noticed, been set aside on 1.2.1110. It would appear that the hypotheca was sold pursuant to the prior execution petition and purchased by the decree holder himself but that proved to be of no avail to him as the judgment debtors title to the property was itself challenged in other proceedings. We are, however, not here concerned with that sale or the crop of litigation which it gave rise to. The second execution application was dismissed on 14.7.1110 and the next one wherefrom the present appeal arises was filed only on 8.6.1117. (E.P. 81 of 1117). That purported to be a continuation of E.P. No. 279 of 1103 and though it was opposed as time-barred, the court allowed the decree holders prayer to treat it as one to revive the first application. It is not very clear to our minds how that could have been done when another application had intervened and that was dismissed for want of prosecution. However it is common ground now that the order allowing the last execution petition, E.P. No. 89 of 1117 to be treated as a continuation of E.P. No. 279 of 1103 has become final. The decree holders prayer in this last application is to bring the properties attached before judgment to sale. A new party was also impleaded in it on the ground that he has obtained some interest in the attached properties under the judgment debters children, the other counter petitioners to the application.