MALLAN SUBRAMONIAN Vs. SYED MUHAMMED NOOHUKANNU

JUDGEMENT

(1.) This second appeal by the first defendant is in a suit for declaration of title and possession and for the cancellation of the proceedings in execution of the decree in O. S. 910 of 1109, the plaintiffs being the respondents. That decree was upon a hypothecation bond which the second defendant gave to the appellant. The decree was against the hypotheca and the second defendant. In execution of the decree, the suit property was attached and in due course was purchased by the appellant. The respondents obstructed delivery of possession to the appellant, but their obstruction was rejected by Ext. VIII, dated the 26th November, 1949. The civil revision petition directed against it was dismissed by the High Court by Ext. O, dated the 25th January, 1951. The respondents commenced this suit on the 27th November, 1952, more than a year after Ext. O. The basis of this suit, as of their obstruction to delivery of possession was, that the suit property belonged to the second defendants tarwad, that under a partition of the tarwad it was allotted to various sharers from whom the respondents took assignments, and that the decree in O. S. 910 of 1109 was not binding on the tarwad. The courts below have held, that having failed to institute a suit under O.21 R.103, the respondents are precluded from claiming possession of the property, which had since been delivered to the appellant, but that their title to the property is unaffected.

(2.) In second appeal, the appellants learned counsel relied on the decision of the full bench of this Court in Ouseph Chacko v. Krishna Pillai Govinda Pillai 1957 KLT 742 for the position, that by their omission to institute a suit under O.21 R.103, within the period of limitation prescribed by Art.11A, the respondents have lost also their title to the property. The full bench has held, that a suit under O.21 R.103, is concerned not only with actual possession at the date of the order, but also with the right which the plaintiff claims to the present possession of the property. This has reference to the title, on which the right of the respondents to the present possession of the property depends.

(3.) The learned counsel for the respondents contended, that as the property belonged to the tarwad of the second defendant and not to him individually, the decree was void against the tarwad, and so too all execution proceedings, including the attachment and sale of the property, and that on the authority of Narayanan Madhava Panicker v. Kurian Ouseph 1960 KLT 519 , their omission to sue under O.21 R.103, is of no consequence. There are dicta and observations in the case cited which lend support to the contention, but with respect, I am unable to subscribe to the view taken in it. In the present case, the appellant sought no decree in O. S. 910 of 1109 and obtained none against the tarwad of the second defendant; the decree was simply against the second defendant and the hypotheca. The appellant attached the suit property as that of the second defendant and not of his tarwad. It is quite true, that the decree did not affect or bind the tarwad, but it is not quite correct for the respondents to contend, that it is void against the tarwad. That the decree is not binding on the tarwad, is not to say that the omission to institute a suit under O.21 R.103, is of no legal consequence. For example, if a decree is obtained against A and the property of B is attached and proceeded against as the property of A, and B raises a claim to the attachment before sale or obstructs delivery of possession after sale and an adverse order is passed against him, B cannot ignore that order and treat the decree and the execution proceedings as void. Bs omission to sue to set aside the order, involves the consequence which is provided for in O.21 R.63 or R.103 as the case may be. It might be different, if the decree was obtained against As tarwad but it happened to be void, say for defect of parties as prescribed by statute. In that case, the decree and execution proceedings including the attachment and sale would all be void. An adverse order against B, under O.21 R.63 or R.103 might be regarded as inconsequential. Such is not the case here. The decree was simply against the second defendant and the hypotheca and the property was attached and sold as if it belonged to him.