GODARU GUPTAN NAMBOORIPAD Vs. ITTIAN KOCHUPILLA

JUDGEMENT

(1.) THESE two cases arise out of proceedings in execution of the decree in O.S. 846/1097 on the file of the Shertallai Munsiff's Court which was one obtained for dues to the 'jenmi Devaswom' called "Thanneermukom Chali Narayanapuram Devaswom" owned by a Nambudiri family Godararu Narayatiaru Namfooodiripad who obtained the decree and died in the year 1105. The succeeding karnavan Kuthiraru Godararu Nambooripad was thereafter brought on record as the 2nd Plaintiff. On 2 -1 -1119 an execution petition was presented by the said 2nd Plaintiff and his son Guptan Nambooripad stating that the son may also be 'brought on record as the holder of a power of attorney from his father. The application was allowed and thereafter the father and son as Plaintiffs 2 and 3 figured on record. The decree was obtained against the members of an Eazhave Marumakkathayam tarwad for recovery of the sum decreed and costs by sale of the holding as also from the other properties of the tarwad. The properties directed to be sold were sold by court and purchased in the name of the 3rd Plaintiff aforesaid on behalf of the Devaswom.

(2.) AGGRIEVED by these adjudications, the applicant appealed to the District Judge of Alleppey by presenting Civil Miscellaneous Appeal 85/1121 and A.S. 257/1121. The learned Judge differed from the Munsiff in his view; and allowed both the appeals and set aside the sale finding that it was vitiated by irregularities in its publication and conduct resulting in loss. He also found that the claim to recover an amount three times more than what was due contravened the mandatory provisions;1 of Order 21, Rule 9, Travancore Code of Civil Procedure which; provides for recovery only of the amount due under the decree by execution.

(3.) THE only Respondent to the C.R.P. and the Second Appeal is the 3rd Defendant who presented the applications to set aside the sale and he is unrepresented in this Court.