BERNARD Vs. MARY

JUDGEMENT

(1.) O. S. No. 502 of 1121 was a suit for a declaration that the plaint schedule properties are liable to be attached in execution of the decree in O. S No. 316 of 1107 of the Cochin Munsiff's Court and to set aside the claim orders passed dated 14. 7. 1121 allowing the claim petitions, M. P. Nos. 2199, 2200, 2201, 2211 and 2213 of 1120, and quashing the attachment effected on 23. 4. 1115 in pursuance of the plaintiff's petition dated 9. 2. 1115.

(2.) IN dealing with issue No. 1, namely, "whether the orders in M. P. 2199, 2200, 2201, 2211, 2213 of 1120 in O. S. 316/07 are liable to be set aside. " the learned District Munsiff has summarised the facts as follows: "the properties comprised in the plaint schedule belonged to Michael and Vacko, two brothers, who inherited them from their deceased father. Michael was in possession of all the properties. Vacko instituted a suit for partition in the Anjikaimal District Court. Pending suit vacko assigned his half share in the properties to one Devassi who got himself impleaded in the partition suit. Mr. P. Sankunny Menon who was appointed receiver of the properties comprised in the partition suit was allowed to continue to be in possession till amounts due to him from the estate were recovered by him, Mr. Sankunny Menon assigned the right of indemnity possessed by him in favour of Devassi who was appointed receiver for all the properties on 22. 6. 1110. Michael's share in the properties was proclaimed for sale by the revenue Department for arrears of Abkari revenue. The sale took place on 10. 9. 1117. Devassi purchased the properties at this revenue sale for Rs. 51 without getting the sanction of the court. The sale certificate was issued in the name of one Vacko. IN enforcement of the sale certificate the properties were also delivered. Thereafter some properties were sold by Vacko himself and some by Vacko and Devassi together, Defendants 1 to 6 are the legal heirs of michael. Defendants 7 to 12 are the assignees and 13th defendant is Devassi. The present plaintiff obtained a mortgage decree against Michael. But the properties comprised in the mortgage were sold away for some prior encumbrance and only a personal remedy was available to the decree-holder. The plaintiff as decree-holder in O. S. 316/1107 attached half share in the plaint schedule properties. Assignees 7 to 12 put in claim applications and this court allowed the claim. This suit is to set aside the claim orders and for a declaration that the properties are liable to be attached for the decree in O. S. 315/07. The contention of the plaintiff on which alone he hopes to succeed is that the real purchaser at the revenue sale is Devassi himself, that the sale certificate issued in the name of Vacko is benami for Devassi and that the purchase made by Devassi when he was receiver of the properties is void. " There can be no doubt that the trial court's finding that the real purchaser at the revenue sale was Devassi and that Vacko was only his benamidar is correct. The respondents agreed that we may proceed on that basis.

(3.) THE only other matter that arises for consideration is ground No. 11 of the memorandum of appeal: "in any view separate sets of Vakil's fee ought not to have been allowed to the several contesting defendants in the first court. " In dealing with this contention the lower appellate court has observed: "the contesting defendants separately had put forward their case in the lower court and that being the case I do not think that any hardship was caused by ordering separate costs which the contesting defendants were legitimately entitled to get. " We agree with the courts below and see nor reason for interference.