MALATHY AMMA Vs. JOS SON OR KATTUKKARAN VARU

JUDGEMENT

(1.) THIS appeal has been referred to the Full Bench on account of a supposed conflict between the dicta in Chacko v. Kesavan, 1962 Ker LT 848 : (AIR 1963 Ker 258) and Manilal Mohanlal v. Sayed Ahmed, AIR 1954 SC 349. The plaintiffs are the appellants. The suit was to recover possession of the plaint A schedule properties and for other reliefs. The plaint A schedule properties belonged to the tarwad of the plaintiffs and defendants 11 to 16. On the 4th Makaram 1104 the tarwad executed a mortgage in respect of these properties to the father of the 17th defendant On the basis of that mortgage the 17th defendant obtained a decree In 0. S. 67/1107 on the file of the District Court, Trichur. The father of defendants 1 to 4, one Varoo, took an assignment of that decree and executed it. The properties were brought to sale and purchased by Varoo after obtaining the permission of the Court for Rs. 7,200/, and he took delivery of the same in execution in the year 1113 M. E. The decree and the execution proceedings were challenged in the plaint as not binding on the plaintiffs or their tarwad. Several allegations attacking the validity of the decree were made in the plaint, but it is not necessary to go into those details, as the question in this appeal turns upon a narrow point The plaintiffs also challenged the validity of the execution proceedings en several grounds. For the purpose of this appeal the most material allegation was that the execution sale was void on the ground that the decree-holder, auction-purchaser did not deposit the balance of the purchase money after setting off the decree amount in accordance with the provision of Order 21, Rules 84 and 85. The plaintiffs therefore prayed for a declaration that the decree and the sale in execution were void, and for recovery of possession of the properties on the strength of their title and other incidental reliefs.

(2.) IT may be observed that the 11th defendant, a member of the tarwad, had filed an application to set aside the sale on identical grounds and that was dismissed by the execution Court. From that order an appeal was preferred in C. M. A. 12/1121 and that was dismissed on the ground that the application was barred under article 181 of the Limitation Act. That case is reported in 37 Cochin 541. The present suit has been filed in forma pauperis on 18-12-1952 by a daughter and a grandson of the appel-lant in C. M. A. 12/1121.

(3.) THE substantial contentions in defence were that the decree was valid and that even if the sale in execution were void on the grounds mentioned in the plaint, a separate suit was not maintainable as the question raised in the suit related to the execution, discharge or satisfacation of the decree in O. S. 67/1107, and that if the suit was treated as an application in execution It was barred by time, having been filed more than three years from the date of delivery of possession of the properties to the decree-holder-auction-purchaser.