NAINA Vs. CHACKO

JUDGEMENT

(1.) The appeal arises out of a suit for contribution.

(2.) The plaintiff had an elder brother by name Kunju Nina. On 28.11.1088 the two brothers executed a chitty hypothecation bond in favour of PW 2 and another. From the 16th instalment of the chitty default was made in the payment of the subscriptions and the foremen instituted a suit in O.Arts.No. 114 of 1099 on the file of the Kottayam District Court to recover the unpaid subscriptions in a lump. Relief was sought against the hypotheca and also personally against the executants. The bond comprised properties belonging to both the executants. Kunju Nina, defendant 1 in that suit, died during the pendency of the suit, but without noticing that fact, on 27.12.1101, the court passed a decree as sued for in the plaint. Defendants 1 to 3 in the present suit are the sons of Kunju Nina and defendants 4 is their deceased elder brother's son. Defendant 5 is the mother of defendant 4. In the proceedings to execute the decree passed in O.Arts.No. 114 of 1099, the decree holders thereto tried to implead the present defendants as legal heirs of defendant 1 deceased, but the court did not allow it as the decree was one passed after defendant 1 had died. This was on 22.4.1105 (Vide Ext. 2). The present plaintiff, defendant 2 there, feeling aggrieved by that order took the matter in revision to the High Court but the revision was unsuccessful. Thereafter execution proceeded against the present plaintiff and during the pendency of such proceedings the decree holders assigned their rights in the decree to PW 1 in the present suit. Pursuant to execution taken out at the instance of the assignee decree holder the plaintiff's properties comprised in the decree were brought to sale, but before the sale could take place the plaintiff satisfied the decree by payments made out of court and by selling some properties to the assignee decree holder. The sale was on 8.12.1113. Ext. C is a copy of the sale deed and it shows that, after giving credit for previous payments the decree was agreed to be adjusted by a further payment of Rs. 2,000/-. The consideration for the sale was fixed at that sum and it therefore fully satisfied the decree. Some time later on 11.2.1114 the assignee decree holder certified to the court satisfaction of the decree. Ext. B is a copy of the certificate of satisfaction. The present suit for contribution for the amounts the plaintiff paid towards the decree debt in excess of his half share was brought on 11.2.1117, i.e., when three years were expiring from the date the certificate of satisfaction of the decree in O.Arts.No. 114 of 1099 was filed in court. Realisation of the claim was sought from the assets of the deceased Kunju Nina in the hands of the defendants and personally from them to the extent the plaintiff succeeded in showing they have enjoyed such assets. The defendants raised various defences but the lower court repelled them all and gave a decree to the plaintiff to recover a sum of Rs. 1,487/- with interest thereon at six per cent per annum from 11.2.1114 to the date of realization from defendants 1 to 3 and the assets of their father that have come into their hands and the hands of defendants 4 and 5. Defendants have hence brought this appeal.

(3.) In setting out the facts we have confined ourselves to such facts as are absolutely necessary for the purpose of the appeal. There is no case for the appellants that the amount fixed by the lower court as Kunju Naina's share of the debt is in excess of one half share.