HUSSAIN MUHAMMED YOOSUF Vs. JOSEPH KATHANAR ALEXANDER

JUDGEMENT

(1.) This appeal arises from the judgment in AS No. 65 of 1981 reversing the order of the learned Munsiff in EP No. 116 of 1978 in OS No. 773 of 1952. The appellants purchased the suit property (mentioned in item 1 of the plaint schedule and comprising 1 acre 90 cents) from the second plaintiff decree holder in OS No. 773 of 1952 under Ext. B1 deed of sale dated 13-12-1967. This property had been delivered to the second plaintiff, the legal representative of the first plaintiff who died during the pendency of the suit, as per Ext. B8 delivery list dated 23-2-1963, pursuant to the ex parte decree passed against defendants 17 and 18 on 6-2-1961.

(2.) The property originally belonged to the first plaintiff. His power of attorney holder Ismail sold it to his mother Avva Ummal on 12-5-1941. She then sold it to the 1st and 2nd defendants on 4-5-1943. Under Ext. A1 partition dated 24-6-1949 between defendants 1, 2, 17, 18 and others, the suit property was allotted to defendants 17 and 18.

(3.) The first plaintiff instituted the suit against these defendants to set aside the sale of the property by Ismail to his mother and the subsequent transactions and for other reliefs. Subsequent to the ex parte decree passed against defendants 17 and 18, they filed applications under O.9 R.13 of the CPC. to set aside the ex parte decree passed against them IA No. 2083 of 1965 was the application filed by the 17th defendant on 20-10-1965. This application was pending when on 13-12-1967 the second plaintiff sold the suit property to the present appellants under Ext. B1. The 17th defendant's application to set aside the ex parte decree was dismissed by the Trial Court on 25-11-1970, but it was allowed on 22-3-1972 by the lower appellate court in CMA No. 6 of 1971. Subsequently on 12-9-1972. the 18th defendant's application was allowed by the Trial Court. Thereupon the suit was retried, and it was dismissed, in so far as the 17th and 18th defendants were concerned, by decree dated 10-11-1972. The decree was challenged by the second plaintiff in AS No. 24 of 1973 and in SA No. 913 of 1974, but without success. Thereupon EP No. 116 of 1978, from which the present appeal arises, was filed by the 17th and 18th defendants under S.144 of the CPC. for restitution. That petition was dismissed by the Trial Court on the ground that the present appellants, who purchased the property from the second plaintiff, were bona fide purchasers for value without notice. That order was reversed by the lower appellate court by the judgment now under appeal.