SAROJINI BAI Vs. KRISHNA PILLAI

JUDGEMENT

(1.) This second appeal is by the 1st defendant attaching decree holder in a suit by a defeated claimant which was dismissed by the trial court but allowed by the lower appellate court.

(2.) The 1st defendant obtained decree in OS No. 484 of 1950 of the District Munsiffs Court, Cochin, against the 2nd defendant, for certain rent arrears. Pending that suit he had levied attachment before judgment of a few articles of furniture consisting of an almyrah, table, chair etc. and valued at about Rs. 130/- as belonging to his debtor the 2nd defendant. The plaintiff thereupon filed Ext. E petition dated 11.9.1950 setting up claim to the attached articles. The petition was enquired into after the suit was decreed and rejected by the Munsiff by his order Ext. D dated 1.8.1952. This suit was then filed by the plaintiff for declaration of his title to the articles in question and which have been itemised in the margin of the plaint. According to the plaintiff he was a subtenant under the 2nd defendant in respect of two of the rooms covered by the building leased by the 1st defendant to the 2nd defendant and the articles were seized from inside the rooms in his occupation in pursuance to attachment levied in collusion between the defendants 1 and 2. The 1st defendant contested the suit on the footing that the movables attached belonged exclusively to the 2nd defendant and were never the possession of the plaintiff. The 2nd defendant was ex parte. The trial court dismissed the suit on basis of its finding that there was no proof that the plaintiff owned or at all was in exclusive possession of the articles in question. In doing so it took into consideration the comparative financial capacity of the plaintiff and the 2nd defendant to purchase and also plaintiffs failure to produce along with his claim petition either Ext. A letter of sale dated 1109 as regards item 1 almyrah which was apparently the most valuable of the articles, or even Ext. C Kaippada book evidencing the plaintiffs sub tenancy under the 2nd defendant. The Munsiff was greatly impressed by the admissions made by the plaintiff while he was being examined on commission in one of the rooms covered by the alleged sub tenancy, that his sister who was married to the 2nd defendant was, along with her children, then residing with the plaintiff. The lower appellate court on the other hand, accepted the evidence of the plaintiff as PW. 4 and his witnesses PW. 1 and PW. 3, to hold that the plaint movables belonged to the plaintiff and were in his possession at the time of attachment and accordingly allowed the suit. Hence this second appeal by the 1st defendant as abovesaid.

(3.) Mr. V. Rama Shenoi, learned counsel appearing for the appellant 1st defendant, raised the question that the appeal taken by the plaintiff before the lower appellate court was ill constituted for lack of the 2nd defendant on the respondents array and was liable to be dismissed on that sole ground. The 2nd defendant had no doubt been made 2nd respondent when the appeal was filed but he was struck out on later date on the motion of the appellant plaintiff himself, that it was unnecessary to retain him on the array since no relief was prayed for against him. Now it may be that the 2nd defendant judgment debtor was an unnecessary party in the suit herein filed by the plaintiff defeated claimant. See Suppan Asari v. Adima Bibi, AIR 1934 Mad. 537 and Mt. Maryam Sibi v. Ram Das, AIR 1922 All. 404 differing from Ghasi Ram v. Mongal Chand, ILR 28 All. 41. But the question is whether in the appeal taken by the plaintiff, the 2nd defendant, whose ownership of the articles attached had been upheld by the trial court as against the plaintiff and in favour of the 1st defendant attaching decree holder, was not a necessary party. This depends on, whether the success of the appeal filed without the 2nd defendant will give rise to two inconsistent or contradictory decrees. As observed in Mullas C.P.C. 12th edition 947: