CHANDRAVATHI AMMA Vs. CHERIPURAM PAYAPATTILLATH

JUDGEMENT

(1.) Respondents 5, 7, 10 and 16 to 19 in an execution petition are the appellants and the decree holder the respondent. The decree sought to be executed was passed by the Subordinate Judge's Court of Kasaragod against three defendants, the second defendant being the karanavan of their tarwad. After the decree the tarwad was partitioned; and the 22 respondents in the execution petition were all the members of the entire tarwad. At the time of the partition, all the major members of the tarwad executed an unregistered agreement, Ext. B-3, wherein all the binding debts were included with directions as to who should discharge which of them. The decree sought to be recovered in this proceeding was also included in Ext. B 3; and it was directed to be repaid by the tavazhi of the appellants. The respondent obtained the decree transferred from the Subordinate Judge's Court, Kasaragod to the court of the Munsiff Magistrate at Hosdrug. There was another execution petition pending then in that court against the tarwad of the appellants; and the respondent filed an application for rateable distribution. An amount of Rs. 379. 25 p. was also paid towards this decree. Thereafter, the respondent applied for attachment of some items of properties, when the appellants and others objected. The execution court overruled the objections and directed attachment, against which an appeal was preferred by the appellants to the court of the Subordinate Judge, Kasaragod, which was also dismissed. Hence the second appeal.

(2.) Two or three objections were raised before the lower courts; and the same have been reiterated before me. One of them is that the decree was not passed against the tarwad, but was only against the three named defendants; and therefore, the impleading of the other members by the transferee court was illegal. I do not find much substance in this contention, because it appears that the second defendant was impleaded in the suit as karanavan of the tarwad. The recitals in Ext. B-3 also add strength to this conclusion, because the debt was accepted by all the major members of the tarwad as a binding debt of the tarwad and it was also directed that the appellants' tavazhi should repay it. If so, the debt was binding on the entire tarwad; and impleading the other members of the tarwad in execution was not really impleading new parties, but was only impleading the tarwad itself so as to obviate further trouble in view of the subsequent partition.

(3.) Another objection is that the decree was once sent back by the Munsiff's Court to the Subordinate Judge's Court and later on it was obtained back from thereby the Munsiff's Court. Though the counsel of the appellants has raised this also, no serious argument has been advanced on this.