ERANIMOS ITHACK Vs. PARAMESWARAN PILLAI GOPALA PILLAI

JUDGEMENT

(1.) The matter arises in execution of the decree. Of the two appeals A. S.412 of 1958 is by the defendants 75 and 76, while A. S. No. 465 of 1958 is by the legal representatives of the 1st plaintiff. The common respondent is the assignee decree holder, 4th plaintiff.

(2.) The decree in the case was obtained by the plaintiffs 1 to 3 on 30-12-114. It provided inter alia, for recovery by them on behalf of their tarwad of the various items scheduled, and from the defendants concerned, with mesne profits. We are concerned with the recovery of 10 acres covered by item by the 35 as against the 55th defendant and of 15 acres in items 34 and 36 from the defendants 54 and 56. These interests of the defendants 54 to 56 are now represented by the defendants 75 and 76 who are the appellants in A. S.412 of 1958.

(3.) On 15-4-1115 soon after the passing of the decree, a partition took place in the tarwad. There was, on that same day, also a sale Ext. P-2 in favour of the common respondent by all the tarwad members inclusive of the plaintiffs 1 to 3 of items viz. 34 to 36 and others covered by the decree with permission to implead himself in execution and recover the items from the respective judgment - debtors. Following this there were separate proceedings one by the 55th defendant and another by the defendants 54 and 56 to set aside the decree against themselves and the properties 34 to 36 in their possession. That of the 55th defendant failed altogether. But the decree against the defendants 54 and 56 was modified so as to enable them to realise the value of the improvements effected on the items 34 and 36 before being compelled to give up possession. The second decree was passed on 29 6-7-1121.