RAJAPPAN PILLAI Vs. RAMACHANDRAN PILLAI

JUDGEMENT

(1.) IN this Civil Miscellaneous Appeal Mr. P. G. Parameswara Panicker, learned counsel for the 2nd defendant-appellant attacks the decree of the learned Subordinate Judge of Alleppey setting aside the decree passed by the trial court dismissing the plaintiff's suit O. S.192/58, and remanding the same for further consideration on all other issues.

(2.) IT is seen that the plaintiff had obtained two chitty hypothecation bonds, evidenced by Exts. P-4 and P-5 dated 2 5 1124 and 20 6 1124 respectively. Ext. P-4 was executed by the 1st defendant, the 8th defendant & one Somasundram Pillai. Ext. P-5 was executed by the 1st defendant and Somasundram Pillai. Defendants 2 to 7 to the action are legal representatives of deceased Somasundram Pillai. There is no controversy that plaintiff instituted a suit originally in the Munsiff's Court, Alleppey, as O. S.194/1125, for enforcing his claims under these two chitty hypothecation bonds. He obtained a decree, and the judgment in the suit is evidenced by Ext. P-8 and the decree is evidenced by Ext. P-7 dated 19 5 1952.

(3.) BEFORE I proceed to consider the circumstances under which the present suit was instituted, it is necessary to note about the directions given in Ext. P-8, the judgment in O. S.194 of 1125. In that judgment, the court has given a direction to the effect that the plaintiff is given a decree subject to certain attachments in other proceedings; and the decree was for Rs. 520/-and interest thereon at 12% from 15-7-1124 till date of suit, and the decree was passed as against defendants 1 to 3. There is also a direction to the effect that the decree will also be as against the plaint schedule properties comprised in the suit, and there was further direction for recovery of certain other amounts as against the defendants. But it it seen that no further directions were given in the judgment, nor in the decree that was framed, enabling the decree-holder to file an application for passing of the final decree for sale, though both the judgment and the decree contained a direction giving time to deposit the money, in two months. Therefore neither the decree nor the judgment was in strict conformity with the provisions contained in O. XXXIV, R.3 of the Travancore Cochin Code.