JANAKI AMMAL Vs. SARADA AMMAL

JUDGEMENT

(1.) Plaintiff is the appellant. The suit is for damages. Plaintiff and the defendant are children of sisters. Sree Rama Tile Works Limited, Quilon, executed a hypothecation bond in favour of the plaintiff and the defendant on 31.1.1107 for Rs. 12,000/-. The plaintiff alone instituted a suit on the basis of the hypothecation bond as O.S. No. 13 of 1121 of the Quilon District Court. The present defendant did not agree to join as plaintiff in that suit and she was, therefore, impleaded as second defendant, the first defendant being the company. It was alleged in the plaint in that case that out of the sum of Rs.12,000/- advanced under the hypothecation bond only Rs. 1,150/- belonged to the present defendant and that the rest belonged to the plaintiff. The second defendant did not at first contest the suit and, under the decree that was passed in the case, the second defendant was held entitled to only Rs. 3,258-26 Chs. 8 Cash out of the plaint amount and the plaintiff was held entitled to the balance amount. Sree Rama Tile Works Limited went into liquidation and the vendees of the liquidators deposited in court the whole decree amount, amounting to Rs. 38,392-5-8. On 4.12.1124 the present defendant filed a petition to set aside the ex parte decree. While that petition was pending, the liquidators filed a petition in the Liquidation Court as Company Petition No. 11 of 1124 calling in question the hypothecation bond and the decree in O.S. No. 13 of 1121 and seeking to set them aside. In the meanwhile the plaintiff applied for disbursement of her share of the decree amount deposited in court. The present defendant objected to the disbursement of the amount to the plaintiff till the disposal of her petition to set aside the ex parte decree. The Court passed an order on 17.4.1125 allowing the plaintiff to draw one-half the decree amount and costs of the suit and staying disbursement of the remaining portion of the decree amount till the disposal of the petition of the defendant to set aside the ex parte decree. The defendant appealed from that order before the High Court as A.S. No. 278 of 1125 and applied for stay of disbursement of one-half the decree amount to the plaintiff till the disposal of the appeal. On the stay petition, the High Court passed an interim order on 5.12.1949 to the following effect:

(2.) The defendant contended that the suit was not maintainable, that the plaintiff and the defendant were entitled to equal shares in the hypothecation amount, that the decree in O.S. 13 of 1121 was obtained by the plaintiff fraudulently, that there was no malafide on the part of the defendant in objecting to the disbursement of the decree amount to the plaintiff, that the liquidators had filed a petition to set aside the decree, that the defendant had reason to apprehend that if the plaintiff was allowed to draw one-half the decree amount without furnishing security the liquidators might recover the amount from the defendant in case their petition was allowed by the court since the plaintiff had no properties in her name, and that it was only for safeguarding her interests that she objected to the disbursement of one-half the amount to the plaintiff without taking security for the same.

(3.) The Court below held that the plaintiff was not entitled to the damages claimed in the plaint and dismissed the suit with costs.