ULAHANNAN Vs. KURIEN

JUDGEMENT

(1.) The plaint property in this sit originally belonged to one Ouseph Uthuppu. He executed three hypothecation bonds in respect of it, one in favour of Skaria on 5.8.1091, another in favour of Markose on 5.9.1091, and the third in favour of one Avira Kuruvilla in 1093. Subsequently he sold the property to Skaria in 1098, and by the sale Skaria's hypothecation bond was discharged and Skaria was also directed to discharge the second hypothecation bond, i.e., the one in favour of Markose. After taking the sale deed Skaria mortgaged the property to the plaintiff by Ext. C dated 28.11.1098. Avira Kuruvilla then filed a suit in the Muvattupuzha Munsiff's Court as O.S. 69 of 1101 and obtained a decree for recovery of the hypothecation amount due to him. In that suit the plaintiff was the fourth defendant and he was impleaded as a subsequent encumbrancer or a puisne mortgagee, and he did not appear therein and put forward any contention Ext. 2 is copy of the decree in O. S. 69 of 1101 of the Muvattupuzha Munsiff's Court. When the decree holder in Ext. 2 suit executed his decree, plaintiff contended in execution that he was a prior encumbrancer and that the decree was also a nullity in as much as Skaria, under whom he was holding the property, had not been made a party to the suit. On this contention being repelled by the execution court, plaintiff brought the suit, which has given rise to this second appeal, praying for declaration of his title to the plaint property. He alleged that he had a prior charge over the property, that Ext. 2 decree was not binding on him and was a nullity in as much as Skaria had not been impleaded in O. S. No. 69 of 1101, that the decree in the said suit was vitiated by fraud and other irregularities, and that he had been prevented by fraud from setting up his contentions in that suit. The court below held that the plaintiff was bound by the decree in O. S. No. 69 of 1101 and that he could not claim any priority of title against defendants 1 and 2 who were claiming under the decree in that suit. Defendants 1 and 2 are in possession of the plaint property under the execution sale in O.S. 69 of 1101. They contended that the plaintiff was bound by the decree in that suit and that he was barred by the decree therein from claiming priority. The courts below upheld their contentions and dismissed the suit with costs. The plaintiff has hence filed this second appeal.

(2.) The allegation that the decree in O. S. 69 of 1101 of the Muvattupuzha Munsiff's Court was vitiated by fraud was not repeated in this Court. But it was contended on behalf of the appellant that since Skaria, who had mortgaged the property to him, was not impleaded in O. S. 69 of 1101 the plaintiff is not barred by the decree in that suit from putting forward his case of priority. This contention overlooks the fact that the plaintiff himself was a defendant in O. S. 69 of 1101 and that he had an opportunity in that suit to put forward the contention that he had a priority over the plaintiff in O. S. 69 of 1101 and was holding the property under Skaria. In an almost similar case, Kutti Nadar v. Voyan, 29 Travancore Law Journal 683, it was observed: