KUNJIPENNU KALLAYANI Vs. RAMAN KOCHU

JUDGEMENT

(1.) THE 19th defendant is the appellant in these second appeals.

(2.) KURIEN Chacko, the father of the respondents obtained on 22.10.1111 two decrees in O.S. 48 and 49 of 1103 on the file of the Meenachil Munsiff's Court for delivery of khas possession of the immovable properties scheduled thereto against the defendants after removing certain buildings and trees erected and planted by them. On 25.12.1112 he applied for execution of both the decrees. Pending these execution petitions, he died. His counsel reported the fact of his death and on 2.2.1113 made an endorsement to that effect on the record. On 4.2.1113 the court ordered "Apply to implead the heirs of plaintiff" and on 14.2.1113 the court ordered "Form struck off. No costs". On 19.10.1120 the sons and legal representatives of the deceased decree-holder applied for execution stating that the aforesaid orders dated 14.2.1113 are merely ministerial, that the execution petitions filed by their father were still pending, available to be continued by them and praying for such continuance and for grant of the reliefs under the decrees to them as legal representatives.

(3.) THE second point urged by the learned counsel for the appellant is that the prior execution petition must be deemed to have been abandoned on account of the long lapse of time. Reliance is placed on the decision of the Privy Council in Puddomonee Dosse v. Roy Muthoorananath Chowdhry (20 W.R. 133). THE facts of that case were peculiar. Certain properties were attached in execution of a decree. When that attachment was subsisting a conveyance was made by the judgment-debtors. Afterwards the execution petition was struck off. THEre was afterwards a mortgage of the properties in favour of another person. THEreafter the decree-holder applied for an obtained another attachment over the properties. THE mortgagee intervened and objected to the attachment as free from encumbrance relying upon the mortgage in her favour. THE objection was upheld and the attachment was confined to the equity of redemption. THE equity of redemption was afterwards sold in court auction and purchased by the aforesaid mortgagee. THE question was whether the purchaser could depend upon the first attachment that there was and claim that the alienation pending it was void and seek delivery of the properties on that basis from the purchaser. THE Privy Council said that having herself treating the first attachment as non-existent taken a mortgage and got it upheld by the court in her objection and having purchased only the equity of redemption subject to that mortgage, she would be estopped from having the properties free from encumbrance which would be the result of allowing her to recover possession of the properties from the alienee though pending the first attachment. THEir Lordships proceeded further to say that in view of the long lapse of time that there was between the first and the second attachments which was unexplained and the party levying the attachment being the same throughout it must be considered under the special circumstances of the case that that party had abandoned the rights under the first attachment and was content to have the second which was enforced and which culminated in the court auction sale. That decision has obviously no application to the facts of this case. Here the decree-holder did apply for the reliefs granted to him by the decree though he did not live long enough to realise the fruits thereof. Law allows the legal representatives to come in and continue such an application so long as it is pending. In this case nothing happened to interrupt its pendency. That being so, there is nothing standing in the way of the respondents who are the legal representatives of the deceased from continuing that petition though they may not have come soon after the death of the decree-holder.