SOMASUNDARAM PILLAI Vs. RAMAN 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.) It will be seen that under the Travancore - Cochin Civil Procedure Code, which was then in force, a composite decree itself, directing the mortgagor to pay the amount, as well as giving a right to the mortgagee decree holder to apply for sale, can be passed (Vide O.34 R.3). In O. S.194/1125 the decree itself was passed by the Munsiff's Court, Alleppy, on 19-5-1952. But it will be seen that the said decree and judgment passed by the Munsiff's Court are certainly not in strict conformity with the provisions contained in O.34 R.3 of the Travancore - Cochin Civil Procedure Code, nor in conformity with Form No. 6 provided for in Appendix D to the Code.