SIVARAMAKRISHNA IYER Vs. MOIDEEN SAHIB

JUDGEMENT

(1.) IN this second appeal,Mr.A.S.Krishna Iyer,learned counsel for the appellant decree -holder auction purchaser,challenges the judgment of the learned Addi­tional District Judge,Ernakulam,in A.S.No.321/61 on his file,remanding to the lower Court C.M.P.No.4715/54 for adjudging the amount of compensation that may be due to the respondent under Kerala Act 29 of 1958.In all other respects,the order of the first court,in favour of the appellant has been confirmed by the learned District Judge;and it is only that part of the order of the appellate court,remanding the petition in the manner indicated above,that is the subject of attack in this second appeal.

(2.) THE appellant claims to be an assignee of a mortgage dated 13th Meenam 1094;and on basis of that mortgage,a suit was instituted for recovery of the mort­gage amount.It will be seen that a decree was passed in the suit itself,somewhere about 1108;and the present contesting respondent in this second appeal has obtained the right,title and interest of the 2nd defendant,by a document Ex.X -1 dated 11th Kanni 1119.The appel­lant brought the properties to sale,and ultimately became the court auction -purchaser of the properties in or about 1120 M.E.

(3.) THERE appears to have been some controversy regarding the identity of the properties,which were the subject of the mortgage,as well as the court action.Ultimately it is now found by both the subordinate courts that the properties that were the subject of the mortgage,the decree,the sale and purchase by the appellant decree -holder,are S.No.690/4(c)and(d)when the appellant attempted to take delivery of the properties,there was obstruction by the contesting respondent,who,as I men­tioned earlier,claims under the 2nd defendant in the suit.No doubt it is stated that on a prior occasion,objections filed by the obstructor appear to have been accepted,in view of the fact that there was some discrepancy in the survey number of the properties mentioned in the suit and also in the other proceedings;and therefore the application filed by the decree -holder for removal of obstruction was rejected.The appellant appears to have filed applications for amending the decree as well as the other papers con­nected with the sale proceedings,and it is seen that all those proceedings were ordered in favour of the appellant.Ultimately it is seen that the properties that have been actually purchased by the decree -holder appellant are S.No.690/4(c)and(d ).