KUTTIKRISHNAN NAIR Vs. MADHAVAN NAIR

JUDGEMENT

(1.) Kuttikrishnan Nair, the appellant in both the cases is the plaintiff in O.S. No. 40 of 1951 and the 3rd defendant petitioner in Small cause suit No. 367 of 1940 of the District Munsiffs Court of Palghat. A.S. No. 441 is from the decree dismissing O.S. No 40 of 1951 and A.S. No. 414 is from the order dismissing an application to set aside an order in execution of the small cause decree declaring the appellant ex parte. The two appeals were heard together.

(2.) The facts necessary for the decision of the two appeals may be briefly stated. The appellant and Defendants 3 to 22 in O. S. No. 40 of 1951 are members of an undivided Marumakkathayam tarwad of which the appellant is the senior most male member. One Padmanabhan Nair, a former karnavan of this tarwad had mortgaged with possession the properties described as items 1 to 16 in the plaint schedule as well as the mortgage right in four other items of immoveable property to one Kesavan Nair for a sum of Rs. 4000. Ext. A2 dated 14-4-1922 is the deed of mortgage The properties were leased back to the tarwad under Ext. A3 of the same date. During the continuance of the mortgage, the mortgage right which the tarwad had in the 4 items referred to above was redeemed and a sum of Rs. 1400/- was received by Kesavan Nair as mortgage money, so that the balance due under Ext. A2 was Rs. 2600. At the time of Exts. A2 and A3 the plaintiff and his younger brother Atchuthan Nair who is the 5th respondent in A.S.No.441 were in Malaya. On 11-4-1923 Padmanabhan Nair and the plaintiff executed a puramkadam Ext. A4 for Rs. 3500 in favour of Kesavan Nair and the latter executed a lease back Ext. A5 on the same day. Padmanabhan Nair relinquished management of the tarwad in 1923 and the plaintiff thus became the karnavan and Manager. The plaintiff again left for Malaya and came back in 1926 when he stayed here fora short while. He again went to Malaya in 1927 and returned only in May 1951. In the meanwhile the mortgagee had assigned his rights to the 1st defendant. In 1940 the 2nd defendant who is the 1st defendants wife instituted a suit as Small cause suit No. 106 of 1940 in the Munsiffs Court of Ottapalam against all the members in the tarwad including the plaintiff on the basis of a promissory ,note executed on 28-4-1957 by defendants 3 and 4, the plaintiffs mother and sister, for recovery of a sum of Rs. 221-14-7. The suit was later transferred to the Munsiffs Court, Palghat where it was numbered as Small cause suit No. 367 of 1940. A decree was passed ex parte in that case and in execution, the 2nd defendant purchased the equity of redemption of all the 16 items covered by the mortgage and puramkadom. The 1st defendant then surrendered his mortgage right to the 2nd defendant. According to the appellant, the promissory note sued on and the decree obtained thereon are not binding on the tarwad. The 3rd defendant was not competent to bind the tarwad as the plaintiff was the karnavan at that time. He was not impleaded as the karnavan in the suit. The appellant however did not seek for cancellation of the decree as execution of the same had become barred by limitation on the date of the suit. The sale in execution of the decree was sought to be set aside on the ground that no notice was served on the appellant who was the karnavan of the tarwad. Treating the execution sale as a nullity the appellants sued in 0. S. No. 40 for redemption of the mortgage after scaling down the mortgage debt under the Madras Agriculturists Relief Act. The 2nd defendant contested the suit. Her main contentions were that the mortgage was not subsisting as she had obtained the equity of redemption in execution of the small cause decree and had taken a release of the mortgage right, that the execution sale was valid, that the tarwad was properly represented in the suit and in execution proceedings, that the plaintiff and the tarwad were estopped from contending that the 3rd defendant was not the Karanavathi at the time of execution of the promissory note and the institution of the suit and the execution proceedings, that the suit was not maintainable, that even if the plaintiff was aggrieved his remedy was to be sought in execution and not by way of fresh suit and that the suit was barred by limitation. The Trial Court upheld the defence contentions and dismissed the suit. A. S. No. 441 is filed from this decree.

(3.) It has already been stated that the appellant was declared ex parte in the execution proceedings in the Small Cause suit. He filed an application No. 514 of 1951 for setting aside this order on the ground that he was not duly served in execution and that he came to know of the order, the attachment and sale of the properties only on 10-6-1951. The decree holder resisted the application contending that the service of notice was proper, that the application was barred by limitation and that the same was not maintainable under O.21 R.105 (Madras) of the Civil Procedure Code. The appellants application was dismissed and he filed A. S. No. 185 of 1954 in the Subordinate Judges Court, Ottapalam against this order. That appeal was transferred to this court to be heard along with A. S. No. 441 of 1954. The only point for decision is whether the execution sale by which the equity of redemption was sold is valid. According to the plaintiff the sale is null and void and the grounds relied on by him are that he was the karanavan of the tarwad at the relevant time, that he was not impleaded as such in the suit and that notice for settlement proclamation was not served on him. The defence is that the plaintiffs mother was the de facto karanavathi of the tarwad, that the plaintiff is riot entitled to question the decree, that the notice regarding the settlement of proclamation was duly served, that even if it was not served the same could not render the sale null and void and that the suit was not maintainable.