BALAKRISHNAN Vs. P V MOHANAN

JUDGEMENT

(1.) This appeal is filed against the decree and judgment in O. S. No. 212 of 1987 of the Additional Sub Court, North Parur. The suit is for declaration of the plaintiffs title over the plaint schedule property and also for a declaration that the decree and execution proceedings in O. S. No. 228 of 1980 are void and also for an injunction against realisation of the decree debt by sale of the plaint property in execution of the decree in O.S. No. 228 of 1980 and for damages. The plaintiff is the appellant.

(2.) The plaintiffs' case in brief is this : The plaint schedule property belongs to the plaintiffs and it is in their possession and enjoyment. The first defendant was the owner of the bus, KRE 4918. He sold the bus to the third defendant. For realisation of the sale consideration, the first defendant filed O.S. No. 228 of 1980 before the Sub Court against the third defendant and obtained an order of attachment before judgment. The third defendant approached the plaintiffs to stand surety and to get the bus released. The plaintiffs agreed to execute a security bond and accordingly a draft bond was furnished to the Court. The Court did not pass any order accepting the security bond. Thereafter defendants 1 and 3 colluded together and filed a compromise petition on 23-1-1981, wherein it has been stated that the plaint amount, interest and costs can be realised from the property offered as security and accordingly, on the basis of the compromise, the suit was decreed creating a charge on the plaint property and the bus was released to the third defendant. The plaintiff in that case, who is the first defendant herein, filed E.P. for realisation of money charged on the plaint schedule property. Since defendants 1 and 3 have no right over the property and since the plaintiffs have not consented to the compromise petition, they filed the above suit for a declaration that the property belonging to the plaintiffs is not liable to be proceeded with for realisation of the decree debt in O.S. No. 228 of 1980. Therefore, the plaintiffs prayed for declaration that the execution proceedings are not binding on the plaintiffs and the plaint property.

(3.) The third defendant remained ex parte. Defendants 1 and 2 filed joint written statement contending that the suit is not maintainable as it is barred by law of limitation, that it is barred by S.47, CPC, that the execution Court overruled the objections of the plaintiffs, that the said order was confirmed in C.R.P. No. 344 of 1985 of this Court and that therefore plaintiffs are not entitled to question the compromise, and the decree passed thereon.