SUBRAMONIAM Vs. NAGARAMMA

JUDGEMENT

(1.) THE appellant is the 3rd defendant in a suit to set aside the decrees in O.S. No. 81 of 1100 on the file of the District Court, Nagercoil, and O.S. No. 17 of 1101 on the file of the District Court, Trivandrum, as also the execution proceedings had thereon been affected by fraud and for recovery of the plaint property with mesne profits.

(2.) THE facts are as follow: THE 2nd defendant was the foreman of a chitty started in 1096 in which the 1st defendant's father was a subscriber who prized his ticket and executed the bond, Ext. C, mortgaging the plaint property to secure due payment of future subscriptions. For amounts due to the plaintiff by the foreman, he assigned the said bond to her in 1078 (Vide Exts. B and F dated 11-11-1098 and 7-12-1098). THE 3rd defendant, professing to be a subscriber in the above-said chitty, instituted O.S. No. 81 of 1100 on the file of the District Court, Nagercoil, for paid up subscriptions, and in execution of the decree obtained therein purchased the rights under Ext. C. He then filed O.S. No. 17 of 1101 in the District Court, Trivandrum, to enforce the bond, with the present plaintiff also as a party thereto, obtained decree and purchased the suit property in court-sale. THE plaintiff thereupon instituted this suit on 24-5-1113 for a declaration that the aforesaid two decrees and their execution proceedings were fraudulent and therefore invalid as against her. THE defendants contended that the proceedings were lawful and valid and denied any fraud having been played in regard thereto. THE court below decreed the suit. Hence this appeal.

(3.) IN Ext. K, she had conceded the claim in the suit (O.S. No. 17 of 1101) and stated that she would take other appropriate proceedings for realisation of her dues from the 2nd defendant. This plea cannot by itself spell out any fraud been played on her. Ext. C is an asset of the chitty which must naturally be available for the liabilities of that chitty. The plaintiff was not a creditor in respect of the chitty. S. 28 of the Travancore Chitties Act, 1094 provided: