JOHN FRANCIS CARLOS Vs. LAKSHMIKUTTY AMMA

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of the decree in O.S. 197 of 1111 on the file of the District Judge of Anjikaimal. The appellant before us is the first judgment debtor in the case. The respondents are the decree holders.

(2.) The facts may be briefly stated. O.S. No. 197/1111 was filed by the respondents to recover possession of the properties mentioned in the schedule attached to the plaint in that case with arrears of and future pattom on foot of a lease back. On 10th Kanni 1099 those properties along with certain others had been usufructuarily mortgaged by defendants 1 to 4, viz. the appellant Francis Carlos (first defendant), his sister Ida Mary Carlos (second defendant), their minor brother Wilfred Carlos (3rd defendant), and their mother, Emily Carlos (4th defendant) in favour of the deceased mother of the plaintiffs for an amount of Rs. 6500. On even date the mortgagors took back the mortgaged properties on lease from the mortgagee on an annual pattom of Rs. 550 and executed in her favour a lease back. Some time later the mortgagors repaid a portion of the mortgage money and got some of the mortgaged properties released from all liability under the mortgage and lease back. The suit No. 197/1111 was filed by the heirs of the mortgagee-lessor the present respondents, on 27.12.1111 seeking to recover possession of the mortgaged properties then outstanding in the possession of the mortgagors as also to recover arrears of and future pattom due to them. The suit was ultimately decreed after contest on 7.5.1113 directing surrender of the suit properties to the plaintiffs by the defendants as also payment by them of an amount of Rs. 5625 on account of arrears of pattom inclusive of interest as well as the costs of the plaintiffs. The decree also directed a sale of the mortgaged properties subject to the liability under the usufructuary mortgage of 1099 for an amount of Rs. 4687-8-0. The decree holders applied on 6.4.1114 by E.P. 189/1114 for delivery of possession to them of the mortgaged properties in execution. Delivery was ordered by court and they obtained actual delivery on 3.5.1114 (vide delivery receipt, Index No. 7). Ever since the respondents have been in possession of the mortgaged properties, after the passing of the Agriculturists Relief Act, XVIII/1114, at the instance of the first defendant the decree in O.S. No. 197/1111 was amended by court effecting a scaling down of the debt and it is the amended decree that is now being executed. The execution application giving rise to this appeal, namely, E.P. 186/21, was filed by the decree holders on 1.8.1121 for the realisation of the scaled down decree debt due to them amounting to Rs. 3172-13-1 inclusive of costs by sale of the equity of redemption in the decree schedule properties. In that application it was alleged that the 4th judgment debtor Emily Carlos was dead and that her legal representatives were judgment debtors 1 to 3. The first judgment debtor (appellant before us) by his written objection filed on 2.12.1121 opposed that application. However judgment debtors 2 and 3 did not raise any objection. The objections raised by the appellant are twofold, namely (1) that the 4th defendant Emily Carlos had died on 22.5.1935, ie., long before the institution of the suit itself and, therefore, the decree passed therein is not binding on him or defendants 2 and 3 in their capacity as her legal heirs or on her estate and (2) that the decree holders after they entered into possession have committed enormous waste in the mortgaged properties for which they are liable to pay damages estimated by him to amount to

(3.) The grounds taken in the appellants memorandum of appeal cover both the objections raised by him to execution in the court below. However, the first ground of objection was not seriously pressed before us by the learned advocate for the appellant. That objection is to say the least frivolous and it was correctly overruled by the learned Judge of the court below. According to the appellant though his mother had died before the institution of the suit O.S. 197/1111, she was impleaded therein as the 4th defendant as if she were alive. The appellant though he contested the suit never cared to raise any objection to it on the ground that it had not been properly instituted, his mother, the 4th defendant being dead. A decree was passed in the suit as prayed for. The appellant, a party to that decree, is certainly not competent now to question its validity and binding nature. His contention that the decree is not binding on the estate of the deceased 4th defendant or on her legal representatives, as defendants 1 to 3 had not been impleaded in the suit as such is devoid of any substance. Even if the appellants mother had died before the institution of the suit, all her children, defendants 1 to 3, were parties to that suit and the decree in the case was passed in the presence of all her legal representatives and with them on record. Her estate was fully represented in that case. The decree, is therefore, completely binding on her estate and her legal representatives, viz., defendants 1 to 3. The appellant cannot, therefore be heard to raise any objection to execution on the ground that the decree is not binding on him or his mothers estate.