UMMINI AMMA DEVAKI AMMA Vs. KOSHY IYPE

JUDGEMENT

(1.) If the facts of this case are properly understood, the question involved will automatically resolve itself; and then it will be clear that the decision of the lower courts is erroneous.

(2.) The suit property was sold by the plaintiff - appellant and her husband, now deceased, in 1103 to the father of defendants 2 to 6. There were then two encumbrances on the suit property and another property remaining in the possession of the vendors. They were the decree debt in O.S. No. 305 of 1104 and a mortgage debt to an Itty Mathai. The vendee was directed under the document to discharge both the debts; but, he did not discharge the second encumbrance, the mortgage debt. To discharge the first encumbrance, the decree debt, the vendee executed another mortgage to Iype Koshi. Iype Koshy filed O. S. No. 737 of 1108 and obtained a decree. Itty Mathat assigned his mortgage to a Koruthu Varkey; and he filed O.S. No.849 of 1109. To the former suit neither the appellant, nor the subsequent encumbrancer, nor his assignee was a party. In execution of that decree the suit property was brought to sale, sold and taken delivery by Iype Koshy. His son is the first defendant, who is the contesting respondent in the second appeal; and he got the suit property from his father. The decree in O.S. No. 849 of 1109 was naturally against the suit property and the other property remaining in the possession of the appellant; and in execution of that decree the property in the possession of the appellant was sought to be proceeded against, when she paid off the decree debt to save her property. Thereafter, she brought the suit giving rise to the second appeal for contribution.

(3.) The Trial Court granted a decree against the assets of their father in the hands of defendants 2 to 6. In other words, the Trial Court dismissed the suit against the suit property in the hands of the first defendant, which was the subject matter of the sale by the appellant and her husband. This decree has been confirmed in appeal by the lower appellate court.