KUNCHAN ACHARI PADMANABHAN ACHARI Vs. YOHANNAN THOMAS

JUDGEMENT

(1.) These two appeals are by the assignee - decree holder and are directed against the same order as to restitution in execution.

(2.) The decree in the case was passed on 26.3.1112 on the contest of the 3rd defendant alone, as against the defendants 1 to 3 and charged on the property scheduled to the decree. On foot of this decree, the court sale of the property took place on 13.7.1113 and was confirmed, after dismissal of a petition under O.21 R.90 C.P.C. filed by the defendants 2 and 3, on 13.1.1116 and the property was in due course delivered on 31.1.1118. Meanwhile on 7.4.1113 the 1st defendant applied to set aside the ex parte decree in the case as against him and got it set aside. The scope of the order under O.9 R.13, as to whether it reopened the whole case even, was finally decided in C.R.P. 928 of 1121 to the effect that the reopening was only as against the 1st defendant. The suit after retrial, was decreed once again not only against the 1st defendant but against the other defendants as well. The plaintiff took up the matter to the District Court in appeal and got the matter clarified to say that the fresh decree was intended to be passed only as against the 1st defendant and his interest in the property. The High Court confirmed this view in second appeal by the 1st defendant by its decree on 19.10.1953.

(3.) As soon as the Munsiff passed his decree after retrial, the 1st defendant deposited in court the entire decree amount on 25.8.1123 and applied for restitution of the property with mesne profits at the rate of Rs. 25 per month. This was resisted by the assignee decree holder on various grounds. The courts below have now concurrently allowed the restitution applications of the 1st defendant and hence these two appeals.