LAWS(KER)-1981-9-5

VARKEY VARKEY Vs. N M KURIAN

Decided On September 30, 1981
VARKEY VARKEY Appellant
V/S
N.M.KURIAN Respondents

JUDGEMENT

(1.) The unsuccessful plaintiff in a suit for declaration that plaint items Nos. 1 to 3 belong to him as per a revenue sale and for a declaration that the decree, execution proceedings and the sale in O. S. No. 7o of 1963 are vitiated by fraud and collusion and not binding on his rights over the properties and for recovery of possession of mesne profits and in the alternative for redemption of Ext. D8 mortgage and possession of those items, and who was also unsuccessful in the first appellate court, is the appellant herein.

(2.) Four items of properties shown in the plaint schedule belonged originally to the second defendant. He possessorily mortgaged the same on 21-3-1952 under Ext. D8 to one Karthiyani Amma for Rs. 2,500/-. The first defendant obtained assignment of the mortgage right on 20-2-1954 under Ext. p-1. For arrears of abkari dues from the second defendant there was attachment on 18-12-1953 and sale by the Government on 7-3-1963 in which the properties were purchased by the plaintiff subject to Ext. D8 mortgage. The sale was confirmed on 19-7-1963, as is seen in Ext. p-2 and Ext. p-10 is the sale certificate issued to the plaintiff. Meanwhile, on 15-2-1963 the first defendant filed O. S. No. 70 of 1963 against the second defendant for recovery of the mortgage money due under Ext. D8 and value of improvements on the charge of equity of redemption. The claim was based on personal covenant as well as allegation that item No. 4 had not been put in the possession of the mortgagee. An ex parte mortgage decree was passed on 1-4-1963. The first defendant filed execution petition for sale on 28-5-1963. R.66 notice was ordered returnable by 14-6-1963. Notice was served, but the second defendant did not file any objection. On 14-6-1963 the court settled the sale proclamation and ordered proclamation and sale of the properties. Court auction and sale took place on 31-7-1963 and the first defendant became the successful bidder. The sale was confirmed on 30-8-1963 and Ext. D-5 is the sale certificate issued to the first defendant. Delivery was taken on 13-2-1964. On 3-10-1963 the plaintiff filed the present suit.

(3.) In the plaint, he challenged Ext. P1 assignment, the decree, execution proceedings as well as the sale. According to him, it was the second defendant who paid up the mortgage money due to Karthiayani Amma, but instead of taking a release, took an assignment Ext. P1 in the name of the first defendant. The mortgage money was really not due and the suit and the decree were brought about by collusion between defendants 1 and 2 as well as fraud. The decree suffers from other defects also. Execution proceedings also are vitiated by fraud and collusion. Execution was speeded influencing the court staff. The properties were under-valued. Encumbrances were not shown in the proclamation. Description and details given in the proclamation were wrong. Meanwhile, the first defendant assigned his rights to the 3rd defendant under Ext. D1. Defendants 1 and 3 contested the suit. They denied all the allegations made against Ext. P1, the suit, the decree, execution proceedings and the court sale. They contended that all these proceedings arc valid. According to them, the sale in favour of the plaintiff is vitiated by lis pendens by virtue of pendency of O. S. No. 70 of 1963. Two courts below overruled all the contentions urged by the plaintiff further accepted the contentions of defendants 1 and 3 to the effect that the sale in favour of the plaintiff under Ext. P. 10 certificate is hit by the doctrine of lis pendens on account of the pendency of O. S. No. 70 of 1963. Two courts be-low further held meeting the contention raised in the course of arguments that the confirmation made on the 30th day of the court auction sale cannot be challenged in this suit.