CHELLAPPAN NADAR Vs. PADMANABHA NADAR

JUDGEMENT

(1.) THESE Second Appeals arise from a suit O. S. No. 1104 of 1120 instituted by the plaintiffs for cancellation of an order passed on an obstruction petition filed by the defendant. The properties described in the plaint schedule belonged to one Vedakannu Nadar. Items Nos. 1 to 5 had been mortgaged by him in favour of the plaintiffs' father. The plaintiffs sued vedakannu Nadar for the mortgage amount in O. S. No. 192 of 1109 and obtained a decree, copy of which is Ext. E. Vedakannu Nadar died after the date of the decree and his only daughter was impleaded as his legal representative in execution. Item Nos. 6 to 18 were attached in execution and all the properties were purchased by the plaintiffs in court sale held on 19. 1. 1119. Ext. F is copy of the sale certificate. When the plaintiffs applied for delivery of possession they were obstructed by the defendant who claimed to be in possession under a Will of Vedakannu Nadar Ext. 1 dated 31. 2. 1104. The obstruction was upheld by the execution court and this suit was filed for setting aside the said order. The plaintiff's case was that the Will had not come into effect, that Vedakannu Nadar's daughter Kannambal was in possession of the estate after his death and that the execution sale held with Kannambal on the party array was valid. The contention of the defendant was that the Will was operative and that he was the legal representative of Vedakannu Nadar, that kannambal had no interest in the property and that the sale which was conducted without the defendant on the party array was inoperative. The trial court held that the defendant was not entitled to prefer an obstruction petition under R. 94 of 0. 21 of the Travancore Code of Civil Procedure and that the defendant was not in possession of the properties. It was also held that since the attachment was held during the life-time of the judgment-debtor the sale was valid. The suit was accordingly decreed in terms of the plaint. The defendant appealed to the District Court and the appeal was allowed in respect of items Nos. 6 to 8. As regards items No. 1 to 5 it was held that the sale was valid and operative as these were properties charged under the decree. The plaintiffs have preferred s. A. No. 277 of 1954 against this decree and the defendant's appeal in respect of items Nos. 1 to 5 is S. A. No. 344 of 1954. The second appeals were heard together.

(2.) WHEN these Second Appeals were heard it was stated that the question whether an execution sale held with the wrong legal representative on the party array was valid had been heard by a Full Bench and that the decision of these Second Appeals might await the opinion of the Full bench. It is however now represented that the Full Bench has not decided this question as the decision turned on some other points.

(3.) IN the result in reversal of the decree of the lower appellate court S. A. No. 277 of 1954 is allowed and the decree of the trial court is restored. S. A. No. 349 of 1954 is dismissed. There will be no order as to costs.