KURUVILA Vs. GOPALAN NARAYANA PANICKER

JUDGEMENT

(1.) The 4th defendant has preferred this appeal against the lower court's order overruling his objections to the execution petition filed by the 18th defendant.

(2.) Defendants 1 and 2 had conducted a chitty in which the 18th defendant was also a subscriber. The chitty was regularly conducted only for a few instalments and thereafter the chitty collapsed on account of the default of the foremen. A subscriber to whom money was due, instituted the suit. Since the other subscribers to whom money was due from the chitty were also entitled to the money due to them, they were also impleaded as additional defendants. In fact, the suit was treated as an administration suit and by the ultimate decree that was passed in the case, the claims of all the subscribers were upheld and they were allowed to claim their amounts out of the funds that may be realised in execution of the decree. In the nature of the decree, any of the subscribers seeking to execute the decree could do so only on behalf of all the subscribers to whom money was due from the chitty. Execution was thus carried on by one or the other of the subscribers at different stages. The present execution petition filed by the 18th defendant is also a step in that direction. The 4th defendant, who is a brother of defendants 1 and 2, raised several objections to the sustainability of the 18th defendant's execution petition. The lower court by its order under appeal found that these objections are untenable.

(3.) One of the objections pressed in this appeal is that the decree schedule item ]5 which belongs to the 4th defendant, cannot be proceeded against in execution of the decree in this case. According to the 4th defendant, items 12, 14 and 15 belong to him and since he is not one of the foremen of the chitty and since there is no decree against him, these items are not liable to be sold in execution of the present decree. It is no doubt true that the 4th defendant, who is a brother of defendants 1 and 2, is not one of the foremen of the chitty and he is not a judgment debtor in this case. On the other hand, he was also in the suit as one of the subscribers to whom money was due. All the same, it has to be remembered that items 12, 14 and 15 had also been given as security for the proper conduct of the chitty started by defendants 1 and 2 and it was on that basis that a decree was passed in this case against all the plaint items including these 3 items. If the 4th defendant had any case that these items cannot be made liable for the amount due to any of the subscribers, he ought to have agitated that matter at the trial stage. The decree, as it stands, was passed with this defendant also on record, and hence he is bound by the decree and it is not open to him to contend at the execution stage that item 15 is not liable for the decree debt. The lower court was, therefore, right in overruling the 4th defendant's objection that item 15 is not liable for the decree debt.