M VIMALA Vs. K P SANKARANKUTTY NAIR

JUDGEMENT

(1.) THESE two appeals arise from the common judgment in o. S. Nos. 33/76 and O. S. No. 57/77 before the Sub Court manjeri.

(2.) BOTH these appeals arise from the judgment and decree in O. S. No. 33/76. A. S. 439/1993 is filed by the third defendant and A. S. No. 525/1993 is filed by the plaintiff in O. S. No. 33/76. The Late father of the appellant in A. S. No. 525/1993 filed O. S. No. 33/76 for a decree of declaration to the effect that he was in possession of the plaint schedule properties and also to set aside the attachment and orders made in execution proceedings in pursuance of the decree in O. S. No. 259 of 1973 on the file of the Sub Court , Palakkad. For the sake of convenience the parties can be referred as plaintiff and defendants as in O. S. 33/76. Plaintiff sri. Parameshwaran Nair died during the pendency of the suit and his legal representatives were impleaded as additional plaintiffs. The plaint schedule property belonged to late Parameshwaran Nair. The said property was given to the 2nd defendant in the suit as per Ext. A1 for the purpose of running a touring talkies for a period of one year. He was required to remove the sheds put up by him for the said purpose after the expiry of the period mentioned in ext. A1. Thereafter, the said arrangement was continued as per Ext. A2 for a further period of three years. After the expiry of the said period of three years, the arrangement between Parameshwaran Nair and the 2nd defendant continued on the basis of an oral agreement. The 2nd defendant was running the cinema theatre under the name and style "perumal Talkies". He continued to run the cinema till 21-6-197 3 by which date his Licence expired. The daily rent was in arrears and the shed was in a dilapidated condition. The 2nd defendant abandoned the cinema and left the place in September 1973. The third defendant, who is the appellant in the other appeal approached late Parameswaran Nair with a request to let out a portion of the plaint schedule properties to him for running cinema. Thus Sri parameswaran Nair and the third defendant executed Ext. A3 agreement on 1-10-197 3 and the plaint schedule property was given to the third defendant for conducting the cinema.

(3.) THE first defendant filed a written statement contending that it is a collusive suit filed by the plaintiff and 3rd defendant at the instance of the 2nd defendant. THE claim petitioners have no right or interest over the decree schedule property. THE first defendant has obtained a decree in O. S. No. 259/1973 on the file of the Sub Court, Palakkad against the 2nd defendant for recovery of Rs. 15,000/ -. In execution of the said decree, the first defendant attached and brought to sale the plaint schedule property. THE 2nd defendant was having a leasehold right over the said property. Late parameshwaran Nair and the third defendant were not parties in the said suit and the execution proceedings. When he came to know about the execution proceedings, Parameswaran Nair filed E. A. No. 469/1976 before the Execution court contending that the 2nd defendant did not have any right over the plaint schedule property and the attachment is to be set aside. It was also contended that the property cannot be sold in auction since the 2nd defendant does not have any saleable interest over the same. Both the claim petitions were dismissed by the Execution Court, against which the plaintiff and 3rd defendant filed the above suits. THE suit filed by the third defendant in O. S. No. 57/77 was dismissed on the ground that the suit is not maintainable since the suit has been filed after the coming into force of the Amended Code of Civil procedure. As per the amended C. P. C. the order in the claim petition is to be treated as a decree and appeal is provided for. So far as O. S. No. 33/76 is concerned, the plaintiff has filed the suit before coming into force of the amended C. P. C. So the trial court found that O. S. No. 57/77 is not maintainable and it was dismissed without going into the merit of the impugned order. O. S. 33/76 was dismissed on merit. Against the dismissal of O. S. No. 33/76, the above said appeals are filed by the parties.