SANKARA PILLAI Vs. KESAVA PILLAI

JUDGEMENT

(1.) These appeals were heard together. The matter arises in execution. The decree in the case allows the plaintiffs to recover possession of plots 5 and 7 in Ext. Z plan on payment of the mortgage money and the value of improvements. Before the lower court, in C. M. P. 5413 of 1122, the 2nd plaintiff and the legal representatives of the deceased 1st plaintiff and their assignees stated that the rights of the decree holder in block No. 5 have been assigned in favour of petitioners Nos. 5 and 6 under a sale deed dated 21-5-1121 and prayed that delivery of 3 acres and 75 cents in block No. 7 may be given to petitioners Nos. 1 to 3 and that block No. 5 may be delivered over to petitioners Nos. 5 and 6 on payment of the mortgage money and the value of improvements. One Govinda Pillai Sankara Pillai who is a member of the tarwad of plaintiffs 1 and 2 resisted the execution of the decree by the petitioners in C. M. P. 5413, on the ground that the rights under the decree belong to the tarwad and that the assignment of the decree is invalid and prayed that he may be permitted to execute the decree. One Ouseph Ouseph, on the strength of the sale deed from the members of the tarwad in his favour, also resisted the application in C. M. P. 5413 and prayed that he may be permitted to execute the decree in respect of block No. 5 and obtain delivery. The 49th defendant who is in possession of 9 acres in block No. 5 in C. M. P. 2024 of 1124 while questioning the rights of the petitioners to execute the decree on the same grounds as those taken by the above parties further pleaded that the execution is barred by limitation and that in any event he is entitled to have the proportionate mortgage money as per the mortgage of 1092 in his favour and also the value of improvements from the date ascertained in execution and paid to him before delivery is ordered. The learned Judge under one order disposed of all the above civil miscellaneous petitions and allowed the petitioners in C. M. P. 5413 to execute the decree and obtain delivery of possession of the properties as prayed for in their application. From the above order the 49th defendant has preferred A. S. 251 of 1124. Govinda Pillai Sankara Pillai petitioner in C. M. P. 5532 of 1123 is the appellant in A.S. 231 of 1124 and Ouseph Ouseph, the petitioner in C. M. P. 5188 of 1123 is the appellant in A. S. 250/1124.

(2.) The contention that the decree is barred by the 12 years' rule is without any substance. The 1st plaintiff had on 20-12-1113 applied for execution of the decree and recovery of possession of the properties. That execution application is still pending and if C. M. P. 5413 is only in continuation of that application, it cannot be said that the decree is barred by 12 years' rule. It is however contended that since the 1st plaintiff died, any application for execution thereafter either by the 2nd plaintiff or the legal representatives of the deceased 1st plaintiff or by their assignees could be made only by a substantive execution application and that any such application could not be treated as a continuation of the prior execution application. For this position reliance is placed on the ruling reported in Palaniappa Chettiar v. Valliamai Achi AIR 1927 Mad. 184 in which it is held that:-

(3.) Next the question of the right of the petitioners in C. M. P. 5413 to execute the decree has to be considered. The main ground on which it is challenged is that the rights under the decree belong to the tarwad of plaintiffs 1 and 2. It is contended that plaintiffs 1 and 2 had at best only a power conferred on them and that the power had ceased with the death of the 1st plaintiff. There is nothing on the face of the decree to indicate that plaintiffs 1 and 2 have obtained the decree on behalf of the tarwad. As far as it could be gathered from the decree and the other records available in the case we are inclined to think that plaintiffs 1 and 2 sued and obtained the decree for redemption by virtue of their separate individual rights. Their rights in the decree are therefore both heritable and transferable. The legal representatives of the 1st plaintiff and their transferees petitioners Nos. 5 and 6 have consequently obtained valid rights to execute the decree. Reliance is placed on Ext. A udampadi to show that whatever rights that plaintiffs 1 and 2 had over the properties had been surrendered in favour of the tarwad and that at any rate after the date of Ext. A the rights in the decree vested in the tarwad. It is also contended that Ext. A, if at all, only authorises the plaintiffs 1 and 2 to recover the property on behalf of the tarwad. It has to be noted that Ext. A came into existence while the case was pending in appeal before the High Court. The rights that were created under Ext. A whatever they be, have not been availed of in the suit and nobody moved the court for a decree in the light of the alleged rights obtained by the tarwad on the basis of Ext. A. It is not for the execution court to go into the rights of the parties on the basis of a document that has come into existence pendente lite and on that footing override the express provisions in the decree that has been passed subsequently. Therefore we do not think it necessary in this case to construe Ext. A and ascertain the exact rights which the plaintiffs 1 and 2 have over the properties comprised in the decree. The decree as it stands confers on plaintiffs 1 and 2 the right to redeem the decree schedule properties and the petitioners in C.M. P. 5413 of 1122 are entitled to execute the decree and recover possession of the properties as prayed for by them. The execution court is concerned only with the execution of the decree as it stands and cannot go behind it. It may be open to the appellants in A. S. 231 of 1124 and A. S. 250/1124 to work out their rights, if any, in a fresh suit. But we do not think they can question the rights of plaintiffs 1 and 2 or their assignees or legal representatives to execute the decree. We would therefore, repel their contentions in these proceedings and leave the question of their rights to the properties open to be agitated in appropriate proceedings if so advised.