JOSEPH MATHEW Vs. G, GOPALA PILLAI AND ORS.

JUDGEMENT

(1.) THIS second appeal is by the 9th Defendant and arises out of a suit for realization of amounts alleged to be due to the Plaintiffs in connection with the sale deed executed on 14 -10 -1101 in favour of one Korath Lukka, father of Defendants 1 to 5 and husband of the 6th Defendant. Ext. A dated 14 -10 -1101 is the copy of the said deed. Under that Rs. 2800 out of the consideration was directed to be paid to one Kalliani Annua. The vendee did not carry out the direction. Kalliani Amma obtained a decree as O.S. 532 of 1104 against the Plaintiffs and others, copy of the said decree being Ext. D. The Plaintiffs contending that they had to satisfy the decree debt on 20 -2 -1117 filed the suit claiming the amount they had to spend with interest charged upon the paint schedule properties covered by the sale deed and from the assets of Korathu Lugga, the deceased Vendee. The 9th Defendant who had obtained an interest in the properties contended that the Plaintiffs had no right to claim a charge and that the suit was barred by limitation.

(2.) NOW on behalf of the 9th Defendant it is contended that no charge was created under Ext. A; that the suit was only for damages and hence no charge can be claimed and that anyway the relief against the properties is barred. In Ext. A there is an indemnity clause to the effect that if damages were caused to the vendor due to the failure of the vendee to pay off the amounts reserved out of the consideration as directed therein the vendee will be liable for the same. There is no reference to the properties being liable. The lower appellate court relying upon Madhavan. Pillai v. Kurien, 1948 Ker LR 783 (A) has held that there was a valid and enforceable charge created under sale deed observing that the suit must be considered as one brought for recovery of unpaid purchase money. In the said decision at page 787 it is observed as follows:

(3.) IN the result, the lower appellate court's decree is set aside as regards the relief of charge granted and confirmed with regard to the relief against the assets of deceased Juke. The appeal is allowed accordingly. The Appellant is entitled to his costs from the Plaintiffs.