CHERUTTY LIAS RAMAN NAIR Vs. KRISHNA IYER

JUDGEMENT

(1.) The second appeal is by defendants 1 to 6 in O.S. 263 of 1952 on the file of the Trial Court. The suit was to set aside a summary order passed in E.A. No. 261 of 1951 and for recovery of possession of the plaint schedule properties from the defendants with future mesne profits. The Trial Court dismissed the suit, but on appeal by the plaintiff, who is the respondent before me, the lower appellate court reversed the decision and decreed the suit. The second appeal is directed against the aforesaid reversing decision of the lower appellate court.

(2.) For the appreciation of the question raised in the second appeal a few facts may be noted. The two items of plaint properties belonged to the marumakkathayam tarwad of defendants 1 to 3 and 7, of whom the 7th defendant was the karnavan. There was a personal decree against the 7th defendant granted by the Kanniparamba Village Court, in execution of which the suit items were attached. The other members of the tarwad, namely defendants 1 to 3, objected to the attachment and pleaded for the raising of the same on the ground that the properties belonged to their tarwad and were not liable to be attached for the personal decree against the 7th defendant. Finally on 29th July, 1911 a consent order was passed by the executing court, under which the parties agreed that the attachment might be confirmed as regards the share of the debtor was concerned over the attached items, subject to certain otti rights and in other respects the claim of defendants 1 to 3 was allowed and the attachment raised. In pursuance of this order execution proceeded and the share of the 7th defendant was sold in court auction on 22nd September, 1941 and was purchased by the assignee - decree holder. The said sale was confirmed on 25th October 1941 and a sale certificate was issued in his name on 16th December, 1941 with regard to the one-fourth share in the property held by the 7th defendant. In the meantime, on 1st September, 1941 O.S. No. 780 of 1941 was filed against the 7th defendant and others, impleading the 7th defendant as the karnavan of his tarwad. A decree was passed in that suit on 14th November, 1942 and the assignee - decree holder attached and sold the plaint schedule properties, which were purchased by the plaintiff respondent before me. The sale was held on 19th August and was confirmed on 13th November, 1946. Thereafter, when the plaintiff applied for delivery of the property in pursuance of the sale certificate, the appellants before me, namely defendants 1 to 6, resisted delivery, whereupon the plaintiff applied for removal of resistance, which petition was dismissed. The plaintiff therefore filed the present suit for setting aside the aforesaid order and the second appeal, as observed already, arises therefrom.

(3.) It may be mentioned that the purchaser of the share of the 7th defendant in court auction transferred that right to defendants 4 to 6, who are the wife and children of the 7th defendant, on 18th August, 1943, and subsequently on 4th November, 1943 a partition of the plaint items was effected by defendants 1 to 6, under which the 1st defendant took his share separately, defendants 2 and 3 took their share as a tavazhi and defendants 4 to 6 took the 7th defendants share as a group. It may be noted that this partition was after the decree in O.S. No. 780 of 1941, which itself was after the attachment of 7th defendants share in execution of the Village Court decree.