GOVINDA PILLAI Vs. KOCHUKOCHI MUTHALAI

JUDGEMENT

(1.) The decree holder is the appellant. The suit was on a hypothecation bond executed by the first defendant in favour of the plaintiff charging two items of properties. Defendants 2 and 3 were impleaded as subsequent encumbrancers of the properties. The suit was first decreed ex parte on 23.3.1105. The decree awarded interest on the principal amount at the rate of 12 per cent per annum from the date of suit till the date of decree and thereafter at the rate of 6 per cent per annum. The date of suit was 8.12.1104. The plaintiff died after the date of the decree and his legal representative applied for execution. In the meanwhile the second defendant also died and his legal representative was brought on record as the fourth defendant. When the decree schedule properties were proclaimed for sale, the fourth defendant objected to the proclamation and also filed a petition on 22.1.1119 to set aside the ex parte decree. No notice of this petition was given to the first defendant. The petition was allowed on 20.7.1119 and the suit was restored to file. No notice of the subsequent proceedings also was given to the first defendant. The fourth defendant contended that he was entitled to priority in respect of certain charges on plaint item No. 2. This contention was upheld by the court, and the suit was decreed on 9.12.1119 against the first defendant and plaint schedule properties subject to the prior charge declared in favour of the fourth defendant over item No. 2. Interest was allowed on the principal amount at 12 per cent per annum from the date of suit till the date of decree, i.e., from 8.12.1104 to 9.12.1119, and thereafter at the rate of 6 per cent per annum.

(2.) The first defendant sold item No. 1 to the 8th respondent directing him to pay off the decree debt. He deposited in court on 27.12.1122 Rs. 3,321-20 Chs. which was the amount shown in the proclamation as per the execution petition dated 23.6.1117 and prayed that it might be recorded that the decree was satisfied. The decree holder contended that a sum of 19587 Fanams was still due to him as per the decree dated 9.12.1119. If interest is calculated at 12 per cent per annum from the date of suit till the date of the second decree the balance amount claimed by the decree holder will be found due to him. But, if interest at that rate is calculated only till the date of the first decree, viz., 23.3.1105, and thereafter only at the rate of 6 per cent per annum as provided in that decree the amount deposited by the 8th respondent will be sufficient to satisfy the decree. Therefore, the question to be decided was whether the first defendant was bound by the second decree, dated 9.12.1119. The court below held that since the second decree was passed without notice to the first defendant he was not bound by that decree and that he was liable to pay only the amount which the decree holder would be entitled to under the decree dated 23.3.1105.

(3.) It was contended for the appellant decree holder that the view taken by the court below is wrong, that there is only one subsisting decree in the case, viz. that dated 9.12.1119, that the first defendant is bound by that decree, and that the execution court is not competent to question the validity of the decree.