AHAMED KUNJU Vs. GEORGE

JUDGEMENT

(1.) THE 3rd Defendant is the appellant. THE suit is for money due under a chitty hypothecation bond Ext. A dated 26-8-1106 executed by the 1st defendant in favour of the foreman who were Puthenpurakkal Varki Thommi and Vazhapallil Poulose Kuruvila. THE 1st defendant prized the ticket on 1-3-1106 at the seventh drawing and drew the amount. He defaulted to pay the subscriptions thereafter. In Thulam 1106, there was an Udampady between the two foremen and their children. By this Udampady one of the foremen Poulose kuruvila and the son of the other foreman, Thommi Varghese, were authorised to realise the outstandings or assign the same in favour of others for money due to them. Accordingly the plaintiff was given the assignment of the rights under ext. A by Ext. C dated 2-5- 1119. THE plaintiff stated that he came to know that in execution of the decree in O. S. 642 of 1108 of the Alleppey Munsiff's court, the Keralavilasom Bank impleaded in this case as the 2nd defendant had purchased the rights under Ext. A bond, that the said decree and the execution proceedings were invalid and not binding on the foremen mainly because the foremen were not impleaded in the above suit, that the said decree was obtained against P. Thomas and company which had been a concern different from that which conducted the chitty, that even if P. Thomas and Company were connected with the chitty, the decree would not be binding on them since the partners in that firm were not impleaded in that suit, that Thommi Varghese who was impleaded in that case was not competent to represent P. Thomas and Company as he had no control or management of the present concern and that the summons in that case was returned unnerved. THE suit was therefore for a declaration that the decree and execution proceedings in O. S. 642 of 1108 would not be binding on the foremen of the chitty and for recovery of 25200 fanams with interest.

(2.) DEFENDANTS 2 and 3 had filed written statements in the case. Their main contentions were that the decree in O. S. 642 of 1108 of the alleppey Munsiff's Court was validly obtained against the 1st defendant and P. Thomas and Company of which the partners were Varki Thommi and Poulose kuruvila, that the foremen of the chitty were the partners in the said firm, that in execution of this decree which is Ext. 13 in the case, the rights under the plaint hypothecation bond as well as the plaint properties were purchased by the 2nd defendant, that Thommi Varghese the son of one of the partners was in management and control of P. Thomas and Company at the relevant time, that the decree was properly obtained and was binding on the partners of the firm, that Ext. C assignment relied on by the plaintiff was executed by Thommi varghese and others in favour of the plaintiff who is the son in law of Thommi varghese without any consideration, that it was invalid as at the time of the assignment, the foremen had no subsisting right over Ex. A and that the decree and the execution proceeding in Ex. XIII case were not liable to be set aside.

(3.) THE findings of the court below are:- (1) P. Thomas and Company, of which the two persons Thommi Varki and Poulose Kuruvila are partners, are the foremen of the chitty in question. (2) At the time when Ext. 13 decree was obtained Thommi Varghese was in control or management of P. Thomas and Company. (3) Since no direction of court was taken in Ext. 13 case to serve summons on the person in management of P. Thomas and Company, the second defendant in that suit, the summons cannot be considered as validly served under O. 30, R. 3 and as such the court had no jurisdiction to pass Ext. 13 decree against P. Thomas and Company; in other words Ext. 13 decree is one passed without jurisdiction against P. Thomas and Company. (4) THE 3rd defendant is incompetent to question the validity of the assignment of the chitty security bond in the name of the plaintiff. (5) THE plaintiff's right to claim subscriptions which fell due in Medom 1106 and Thulam 1107 is barred by limitation.