SAROJINI Vs. SANTHA TRADING CO

JUDGEMENT

(1.) This appeal is by the plaintiff whose suit under O.21 R.63 CPC. has been dismissed by the Court below. The suit property belonged to the 3rd defendant in kanam right as per the kanam deed, Ext. A1, dated March 23, 1942 in her sole name. In November 1955 it was attached by the 1st defendant in execution of the decree he obtained against the 2nd defendant who is the husband of the 3rd defendant. On January 12, 1956, the 3rd defendant objected to the attachment denying the 2nd defendant any interest in the property; but it was dismissed by the execution Court on November 22, 1956. In the meanwhile on March 14, 1956, she had assigned the property to K. P. Ananthan Adiyodi, who, in his turn, assigned to the plaintiff on November 9, 1956. The plaintiff did not intervene in the claim proceedings, but on March 15, 1957, instituted the present suit to establish her title to the property and to restrain the proceedings against it. The 1st defendant resisted the suit asserting the 2nd defendant to have acquired the property benami in the name of the 3rd defendant and denying the plaintiff's right to institute this suit. The Munsif, Kozhikode II decreed the suit, but on appeal the Subordinate Judge, Kozhikode, has reversed him and dismissed the suit. Hence this second appeal.

(2.) In supporting the decree of the Court below, counsel for the 1st defendant contended that the plaintiff, who was no party to the claim proceedings but is an assignee pending those proceedings, is not entitled to institute this suit to get rid of the order therein. O.21 R.63 CPC. reads:

(3.) On the merits of the case: as has been observed by the Subordinate Judge, the burden is on the plaintiff to establish her right to the property and, as she is seeking to get rid of the adverse effect of an order passed by the executing Court, to show positively that that order is erroneous. The Munsif found the plaintiff to have discharged that burden and held: