ULAHANNAN MARIAM Vs. VARKEY KURUVILLA

JUDGEMENT

(1.) This appeal, I hope, will mark the end of a fairly protracted litigation between the decree holder, on the one hand, and the second defendant appellant before me, on the other. Two interesting points have been raised before me by counsel for the appellant. The points are, one, that the second decree passed in this case on 25-3-1119 should be ignored so far as the appellant is concerned and two, that the Trial Court had no jurisdiction to set aside the first decree under R.13 of O.9 of the Code of Civil Procedure after it had become inexecutable due to the bar of limitation.

(2.) From the decree, it is seen that the same is for money charged on certain properties which belonged to the first defendant. He was obliged to pay the amount in accordance with the provisions in a partition deed that took place between him and the original plaintiff. Defendants 2 to 6 were impleaded in the suit as subsequent encumbrancers. A decree was passed on 7-2-1111 against the plaint items. This decree, applying the six years rule, would have got barred on 6-2-1117. Thereafter, on 22-12-1117, the third defendant, who had remained ex parte, applied under O.9 R.13 of the Code of Civil Procedure to have the ex parte decree against him set aside. This application was accepted by the court and the decree in so far as it was against the third defendants interest in the plaint properties was vacated on 22-12-1118. The contentions of the third defendant, however, were ultimately rejected, and a second decree on practically the same terms as those of the first was passed on 25-3-1119. The only alteration made was that item No. 3, to which the third defendant laid claim, will be sold last in execution.

(3.) The execution application out of which these proceedings commenced was filed on 25-2-1125. This application had a chequered career and up to the present time seven orders have been passed on it. On a former occasion, the matter was argued elaborately before the High Court and the decision of the High Court is reported in Ulahannan Mariam v. Varkey Kuruvilla ( 1956 KLT 375 ) wherein it was held that there was no bar by limitation for the executability of the decree. However, it was also observed that