KUMARAN KRISHNAN Vs. ULAHANNAN MATHAI

JUDGEMENT

(1.) THIS second appeal is by the 2nd defendant and the matter arises in execution.

(2.) THE decree in the case was one for redemption of Ext. B sub-mortgage executed by the 3rd defendant in favour of her grandson the 1st defendant minor. THE 2nd defendant is the father of the 1st defendant and also his guardian ad litem. THE decree schedule property is described as the eastern 1 acre 19 cents out of a whole area of 2 acres 38 cents comprised in S. No. 602/4 and known as Kolethunirappel or Thrikkamattom Purayidom in Vaikom Taluk. THE 2nd defendant had contested the suit on behalf of the 1st defendant on the basis that the sub-mortgage had not come into effect and he was not anyhow in possession of the property S. No. 602/4. He was in possession only of the eastern property S. No. 602/1 and that again by virtue of a lease Ext. I of 1119 from the common jenmi viz. , Pazhoor Illom. In passing the decrees for redemption the court found that the sub-mortgage was really operative and 2nd defendant was bound to surrender the mortgage holding in his possession, but it took occasion also to say that the defendants 1 and 2 were not to be restrained from putting up building on S. No. 602/1 which belonged to them. In execution, however, the plaintiff took delivery of S. No. 602/1 as if that property and not S. No. 602/4 was covered by the decree for redemption. THE application was therefore presented by the 2nd defendant for re-delivery. THE courts below have now found that S. No. 602/1 was the property mortgaged under Ext. A of 1096 to the 3rd defendant and sub-mortgaged by her under Ext. B and that plaintiff had rightly obtained delivery thereof. THE wrong description in the decree of the property as S. No. 602/4, did not on the whole, really matter. Hence this appeal by the 2nd defendant as abovesaid.