(1.) The 3rd defendant who is the legal representative of the deceased second defendant in O. S. 492 / 119 on the file of the Ettumanur Munsiff's Court is the petitioner and the plaintiff and the 1st defendant are respondents 1 and 2 respectively. The revision is directed against the of that court rejecting the petitioner's application for review of judgment passed in the case on 21-1-1123.
(2.) The facts briefly are as follows: One Mathai Thommen who was the owner of the land specified in the schedule to the plaint on which existed a building, created successive encumbrances thereon by way of hypothecation on 5-4-1095, 8-7-1095 and 9-9-1099, the first of which was in favour of the 2nd defendant. The second and third deeds contained other properties and provisions for discharge of the liability under the first. The details of those transactions are unnecessary for the case. Mathai Thommen bequeathed his properties including the hypotheca in the said transactions to the plaintiff and his mother. They as legatees assigned the properties in the plaint to the 1st defendant directing him to discharge all the three encumbrances with a provision for indemnity against any loss consequent on the 1st defendant's default in their discharge, which liability was made a charge on the properties. The 1st defendant not having discharged any of the encumbrances the 2nd defendant and the other hypothecatees filed O. S. 514/1106, O.S. 176/1113 and O.S. 694/1118 to realise their dues respectively. All the three suits ended in decrees and in execution of the decree obtained by the 2nd defendant, there was a court auction sale at which the decree holder himself purchased the properties and reduced them to possession through court in the year 1118. This suit (O. S. 492 / 1119) is consequent upon the proceedings in the aforesaid three suits.
(3.) The plaint alleged that neither the plaintiff nor his mother who, as charge holders under the clause of indemnity contained in the sale deed given by them to the 1st defendant were subsequent encumbrancers to the hypothecation enforced by the 2nd defendant in O. S. 514/1106 had a right to redeem the plaintiff and were therefore necessary parties to that suit and not having been impleaded their right of redemption was intact. Redemption was therefore sought of that encumbrance. No payment had however to he made as the price of redemption because it was alleged that the 2nd defendant had, after getting possession of the properties through court as purchaser, demolished a building that there was in it whose value was in excess of what was due to him. The result was, the plaint alleged, that the 2nd defendant had to pay the value of the building to the extent of such excess which was estimated at a certain amount in the plaint. The further consequence was that the second defendant rendered himself liable to pay the plaintiff mesne profits at the specified rate claimed in the plaint from the date on which the building was demolished, which act operated to discharge his encumbrance and rendered his possession thereafter tortious. The 1st defendant was ex parte. The 2nd defendant filed a written statement repudiating all the allegations and claims made against him and contending, inter alia, that the plaintiff has no cause of action, the suit is not maintainable in law, and that the claim is in any event barred by limitation. The issues relating to these pleas last mentioned were taken up first for disposal by the Munsiff. He decided them in favour of the 2nd defendant and dismissed the suit. The first defendant's appeal (A. S. 332/1121) to the District Judge of Kottayam succeeded. The Judge was of the opinion that the suit was maintainable and that therefore the other issues including the one relating to limitation, which would depend upon certain facts to be ascertained and found, had to be tried afresh by the Munsiff and the matter finally disposed of.