CHIRUTHAKUTTY Vs. CHANDUKUTTY NAMBIAR

JUDGEMENT

(1.) This C.M. Appeal arises out of an application made before the court below by the appellant, stranger to the suit, which has now been disallowed by it.

(2.) The appellant was the wife of Othenan Vydier who was a prior karanavan and manager in the tarwad, the properties of which were being partitioned, in the suit O. S.5 of 1949 herein. In such capacity as karnavan, Othenan Vydier had granted to the appellant, Ext. A-1 kanom deed on 22-5-1933 in respect of 5 items of tarwad properties. On the Receiver in the suit, seeking to deal with item 5 also, along with other tarwad properties which had come under his control, the appellant made the present application dated 28-11-1953, praying for direction that the Receiver should not take delivery of it or it be had already done so he should re-deliver it to her. The appellant claimed that she had been in continuous possession and enjoyment of item 5 alike as the rest of the items covered by Ext. A 1 and the action of the Receiver was only inspired by the 1st defendant, present karnavan, who was not well disposed towards her. The application was consented by the Receiver and the 1st defendant, who were both made respondents thereto. The Receiver pleaded that he had obtained surrender of the paddy flat portion of the item concerned from the 7th defendant, junior member, even in November 1952 long before the application was filed and had further included it in the lease he had given to Choyi (examined as P. W. 1) in December of that year. As regards the Kuni portion of item 5 he got delivery thereof on the death, in June 1953, of the 2nd defendant, another junior member, and he was still keeping the same. The 1st defendant supported the Receiver and further alleged that the junior members of the tarwad, in possession of item 5 at the date of Ext A-l, had protested against its inclusion in Ext. A-l, & had refused to part with it, either then or later. The 2nd defendant was in possession of the entire item until 1120 (1945) when he gave up the paddy flat portion to the 7th defendant, while retaining the Kuni portion himself. The 1st defendant denied that he was any way specially responsible for the action of the Receiver as alleged. The court took evidence on the application and finally upheld the objections raised by the respondents and dismissed the petition. Hence this appeal

(3.) Learned counsel for the respondents took a preliminary objection to the maintainability of the appeal There is no substance however in the objection. Obviously the application in the court below must have been made under O.40, R.1 (b) of the Civil Procedure Code, though actually, S.151 was alone mentioned therein. If so, there is no doubt that the appeal lies. As observed in Ramaswami Pillai v. Janaki Ammal AIR 1923 Mad. 129 :