ITTIAVIRA THOMMEN Vs. CHANDY ABRAHAM

JUDGEMENT

(1.) THESE appeals arise from a single appellate order in execution of the decree in O. S. No. 816 of 1109 on the file of the District munsiff's Court of Meenachil. S. A. No. 400 is by the defendant-judgment-debtor while S. A. No. 410 is by the additional plaintiffs 3,4 and 6. THESE appeals came before a Single Bench in the first instance and were referred to a division Bench as they raised questions of some importance.

(2.) THE second plaintiff is the mother of the plaintiffs 3 to 6. Her deceased husband, the original plaintiff, obtained the decree for money in question against his brother the defendant for his share of property left out in a partition between them. THE ultimate decree was passed by the high Court on 13. 1. 1111. THE original plaintiff died during the pendency of the second appeal in the High Court and the plaintiffs 2 to 6 had been impleaded there as his legal representatives, 2nd plaintiff being appointed as the guardian ad litem of children the plaintiffs 3 to 6.

(3.) THE executing court subsequently passed orders on 21. 10. 1950 that the decree had been validly discharged and further that execution was barred by limitation. In the appeal preferred to the lower appellate court by the plaintiffs 3, 4 and 6 that court held that Ext. A assignment was a bona fide transaction fully supported by consideration and there was also no reason to think that the discharge pleaded by the defendant was fictitious; but all these could not avail against the 3rd plaintiff inasmuch as there had been no certification of satisfaction of the decree. THE only question then was whether the execution of the decree was barred by limitation or not and on this the learned District Judge held that there was no bar of limitation and the 3rd plaintiff was entitled to execute the decree. He, however, confined the execution to the share of the 3rd plaintiff alone, in the view he took that the 3rd plaintiff could look only for himself and the 2nd plaintiff had validly assigned all her one-half share of the decree and had not also relinquished her guardianship over the plaintiffs 4 and 6.