PARAMESWEARN NAIR Vs. AIYAPPAN PILLAI

JUDGEMENT

(1.) This appeal is by the 6th defendant respondent in S. A 729 of 1953 on the file of this court

(2.) The matter arises out of an objection filed by the appellant 6th defendant under S.47 C.P.C. against the delivery in execution, of items 1 to 4, to the respondent additional 3rd plaintiff. These items had been obtained assignment of by the 3rd plaintiff from the 2nd plaintiff original decree holder auction purchaser. It was the case of the 6th defendant that he alone had advanced the purchase money in respect of the assignment and the 3rd plaintiff who had married his daughter since deceased, was a mere benamidar for him in the matter. The 3rd plaintiff denied that he was a benamidar and further objected to the maintainability of the objection on various grounds. The executing court as well as the District Court in appeal by the 3rd plaintiff found concurrently in favour of the 6th defendant on both aspects of benami and maintainability and refused delivery. In second appeal, by the 3rd plaintiff, however, Nanadana Menon, J., held that the 6th defendant was debarred from maintaining his objection, in view to his quiescence at earlier stage. Hence this appeal by the 6th defendant and with leave therefor.

(3.) The 4 items in dispute along with two others, viz., 5 and 6 originally belonged to Ibrahim the ancestor of defendants 1 to 5. On foot of an encumbrance charging all the C items in his favour, the 5th defendant filed suit and obtained decree in O. S.271 of 1108 against defendants 1 to 5 and in due course of execution, purchased them himself on 27-6-1109. He took delivery however of the present items 1 to 4 leaving the two other items to the defendants 1 to 5, in consideration of their undertaking to pay off the prior encumbrance in favour of the original plaintiffs 1 and 2 in this suit. According to the 6th defendant, the failure of defendants 1 to 5 to fulfil their undertaking led to this suit and decree and with a view to safeguard his interests it was, that he got the 3rd plaintiff to purchase on his behalf, items 5 and 6 at the execution sale on 3-12-1115 and later, on 15-4-1116 he obtained the assignment as regards the items 1 to 4.