SUNIL SETHU Vs. KUNJU KUNJU KARUNAKARAN

JUDGEMENT

(1.) The validity of a final decree is challenged in this appeal.

(2.) The plaintiffs, two in number, and defendants, 3 in number, are children of one Kunjukunju and his wife Mythili, on whose death the plaintiffs and defendants became equally entitled to the plaint-A schedule property. The plaintiffs filed O.S. No. 87 of 1977 for partition of the property. The first defendant raised a contention that the plaintiffs and the other defendants had agreed to sell their shares to him for Rs. 42,000/- and the suit for partition was not maintainable. The trial court held that the agreement relied on by the first defendant amounted to a family arrangement and the only right of the plaintiffs and the other defendants was to receive the amounts mentioned in the family arrangement. Two appeals were filed against the decree namely A.S. Nos. 321 of 1982 and 357 of 1982. By a common judgment a Single Judge of this court dismissed the appeals subject to the modification of the decree to the effect that the plaintiffs and defendants 2 and 3 were entitled to get interest also @ 6% per annum from 30.6.1977, the date on which the first defendant was bound to make the payments to the other sharers. AFA No. 87 of 1991 and AFA 108 of 1991 filed against the said common judgment were dismissed on 19.11.1991. In 2011 the first defendant filed an I.A. for passing a preliminary decree and another I.A. No. 544 of 2011, for passing a final decree. The learned Sub Judge passed a final decree directing the first defendant to deposit Rs. 42,000/- with interest as directed by this court in the decree in AS No. 321 of 1982 and 357 of 1982. The interlocutory application filed for passing a preliminary decree was dismissed in view of the passing of the final decree. Thereafter, the first defendant filed E.P. 116 of 2012 for execution of the final decree and he deposited the amount he was bound to deposit under the decree. The validity of the final decree is assailed in this appeal.

(3.) Heard Sri. K.S. Hariharaputhran and Sri. Azad Babu appearing for the first defendant appellant and the respondents respectively.