KUNCHI PILLAI Vs. SUNNY REBELLA

JUDGEMENT

(1.) The suit was on a hypothecation bond Ext. A dated 11-3-1095 executed in favour of Louis the father of the plaintiff by the 1st defendant and one Variathu Chandy the father of defendants 2 to 5. The hypotheca was a property jointly acquired in the name of the two hypothecators. Subsequently in 1096 there was a partition between these two hypothecators and under this the hypotheca was given to the share of the second hypothecator Variathu Chandy. This Variathu Chandy had executed a mortgage with possession relating to the hypotheca in favour of the 7th defendant on 10-3-1102. Ex. I is the document. For the principal and interest due under the bond, the present plaintiff and his father filed O.S. 709 of 1106 in the Munsiff's Court of Parur. Both the hypothecators were parties to the same. But the 7th defendant had not been impleaded in that case. Though the plaintiff obtained a decree for the principal amount and interest as seen from Ext. D judgment and Ext. E decree in that case, it was not possible for him to proceed against the hypotheca as the 7th defendant had not been impleaded as a party in that case. The original hypothecatee is dead, and his son in whose favour the decree Ext. E had been passed by the consent of the father filed the present suit on the identical hypothecation bond making the 7th defendant also a party. The suit was filed on 10-2-1118. Since it was filed more than 12 years after the date of Ext. A, the plaintiff relied on the acknowledgment of the liability under Ext. A by the present 1st defendant in his written statement Ext. C on 20-12-1106 in O.S. 709 of 1106.

(2.) The 7th defendant alone contested the suit and her contentions were that the decree and the execution proceedings in O.S. 709 of 1106 would not be binding on her, that the amount claimed in the plaint was not correct, that the acknowledgment relied on in the plaint was not true, that the same could not be used against her, and that the suit was barred by limitation. The courts below have concurrently found against the 7th defendant and decreed the suit.

(3.) The only question that arises for consideration in this appeal is whether the acknowledgment of the liability under the debt made by the 1st defendant in his written statement Ex. C in 1106 after he had completely parted with his interest in the property would be binding on the 7th defendant who had secured the interest in the property in 1102, that is, four years before the acknowledgment was made.