VENTAPERUMAL NADAR Vs. PARVATHI NADACHY

JUDGEMENT

(1.) The plaintiff in O.S. No. 562 if 1118 of the District Munsiffs Court of Nagercoil is the appellant in this case. The suit is for a declaration that the decree and execution proceedings in O.S. No. 2038 of 1104 of the District Munsiffs Court of Nagercoil are void and for setting aside the same and for a permanent injunction restraining the 1st defendant from recovering possession of the plaint property on the basis of the court sale in that case. The plaintiffs adoptive father had executed two hypothecation bonds in favour of the father of defendants 2 and 3. After the death of the hypothecator the father of defendants 2 and 3 filed O.S. No. 2038 of 1104 on the basis of the hypothecation bonds against the present plaintiff and the widow of the hypothecator. The present plaintiff who was a minor was at first represented by his mother as guardian for the suit. Although a written statement was filed by her on behalf of the minor nothing further was done in the case and the suit was decreed exparte.

(2.) As per Ext. A adoption deed dated 3.1.1102 the natural father of the minor was to be his legal guardian after death of the adoptive father. The natural father who is the 5th defendant in this case filed a petition to set aside the exparte decree and to have him appointed as guardian for the suit of the minor. The exparte decree was set aside and the natural father was appointed guardian for the suit of the minor on 15.10.1105. He filed a fresh written statement but the suit was again decreed on 17.11.1105. When the decree was prepared, by mistake the mother of the minor was stated to be his guardian. In the execution application that was filed by the decree holder the minor was represented by his mother and therefore the notices relating to the execution were issued to the mother. When the property was brought to sale the present 5th defendant put in a petition on 16.4.1107 contending that he was the legal guardian of the minor defendant and praying that the decree holder should be directed to correct the decree and that he might be given six months time in order to raise the decree amount by mortgaging the decree schedule property with the leave of the court after getting the decree corrected. The decree holder agreed to the sale being adjourned for three months and it was accordingly adjourned to 15.7.1107. On that day the 5th defendant filed another petition for further adjournment of the sale for three months, alleging that he had put in a petition to correct the decree, that the petition was posted for hearing on 20.7.1107 and that he could act on behalf of the minor only after the decree was corrected. This petition was rejected by the court and the sale was held on the same day. The decree holder purchased the property for the decree amount. From the order passed on 15.7.1107 an appeal was filed in the District court by the 5th defendant and that also was dismissed. When the decree holder applied for delivery of possession of the property the 5th defendant raised objections on behalf of the minor and they also were rejected. The appeal filed from the order rejecting those objections was also dismissed. Then the present suit was filed by the plaintiff for the reliefs mentioned above.

(3.) The main allegations in the plaint are that the amounts under the two hypothecation bonds executed by the plaintiffs adoptive father had really been discharged, that there was negligence on the part of the 5th defendant in the conduct of the case, that the decree is invalid and that in any case the execution proceedings are void since the plaintiff was not represented in those proceedings. The 1st defendant in his written statement denied all these allegations and contended that the decree and execution proceedings in O.S. No. 2038 of 1104 are valid and binding on the present plaintiff. The 5th defendant filed a written statement supporting the plaintiff. The Trial Court held that there was no negligence on the part of the 5th defendant in the conduct of the case on behalf of the present plaintiff in O.S. No. 2038 of 1104, that the plaintiff was properly represented in the execution proceedings in that case and that the decree and auction sale are valid. The suit was therefore dismissed with costs.