PAREEKUTTY HAJI Vs. PARAMESWARAN NAMBOODIRI

JUDGEMENT

(1.) These appeals arise out of two connected suits, O.S. Nos. 586 of 1946 and 174 of 1945 of the Principal District Munsiffs Court of Tirur The two suits, O. S.174 of 1945 and 586 of 1946, were tried and disposed of together by the learned District Munsiff; and against the Munsiffs decrees in the two suits there were three appeals in the court of the Subordinate Judge of South Malabar at Kozhikode, A.S. Nos. 29, 35 and 36 of 1949. The learned Subordinate Judge dismissed all the three appeals. Against the appellate decrees three second appeals were filed in the Madras High Court, namely, S.A. Nos. 716 of 1952, 1588 of 1952 and 1589 of 1952. The first of these second appeals, S. A. No. 716 of 1952, was heard and dismissed by Krishnaswamy Naidu, J., of the Madras High Court on 15 12 1955; and the remaining two, namely, S. A. Nos. 1588 and 1589 of 1952, have been transferred to this court after the formation of the Kerala State. Both these second appeals, Nos. 1588 and 1589 of 1952, have been filed by the same person. He was the plaintiff in O. S. No. 586 of 1946 out of which has arisen S. A. No. 1588 of 1952, and defendant 33 in O. S.174 of 1945 which has given rise to S. A. No. 1589 of 1952.

(2.) O.S. No. 174 of 1945 was filed by some junior members of a marumakkathayam tarwad, the karnavan of which was one Govinda Menon, defendant 7 in the suit. The prior karnavan of the tarwad, Unnikanna Menon, had executed two bundles for Rs. 2.000/ in favour of Mamutty, the predecessor-in-interest of defendants 1 to 3 and 32. Mamutty endorsed these hundies in favour of the Kerala Central Bank as additional security for amounts borrowed by him under a mortgage deed, and for amounts due to them as per the mortgage and the security deeds the said bank obtained a decree in O.S. No. 75 of 1927 of the Calicut Sub-Court against Mamutty and Unnikanna Menons tarwad. It was provided in that decree that Unnikanna Menons tarwad was to be liable for Rs. 2,441-4-0 out of the decree amount, the said amount being the principal and interest under the two hundies, and that if the tarwad discharged this liability the immovable properties mortgaged by Mamutty would be liable only for the balance decree debt. In the event of the failure of Unnikanna Menons tarwad to discharge its liability the immovable properties mortgaged by Mamutty were made liable for the entire decree amount. Subsequently, the Kerala Central Bank assigned the decree to the Yogakshema Bank, and since neither Mamutty nor Unnikanna Menons tarwad paid the decree amount the Yogakshema Bank caused Mamuttys properties to be sold and realised the entire decree amount from them. Then Mamutty made an application to the Calicut Sub-Court, E. A. No. 762 of 1943, in O. S. No. 75 of 1927 alleging that he was entitled to execute the decree in the said case against Unnikanna Menons tarwad and realise from it the amount decreed against the tarwad as per the two hundies since the tarwad had not discharged its liability under the decree, and praying that the decree might be sent to the Tirur Munsiffs court for execution. At the time of this application Unnikanna Menon was dead and defendant 7, Govinda Menon, was the karnavan of the tarwad. After notice of the application to Govinda Menon, E. A. No. 762 of 1943 was allowed & the decree sent to the Tirur Munsiffs Court. Mamutty then filed E. P. No. 319 of 1944 in the Tirur Munsiffs court, and after impleading Govinda Menon as an additional defendant to represent his tarwad he executed the decree and caused-some of the properties belonging to the tarwad to be sold in execution and realised the amount due to him. At the execution sale different persons purchased different items of properties. Mamutty himself was the auction purchaser of some of the properties, and the other auction purchasers were defendants 4, 5 and 6 in O. S. No. 174 of 1945.

(3.) The suit, O.S. No.174 of 1945, was brought by some junior members of the tarwad of Unnikanna Menon and Govinda Menon for cancellation of the execution sale in O. S. No. 75 of 1927 conducted at Mamuttys instance and recovery of possession of the properties sold thereat, on the allegations that there was no decree in O. S. No. 75 of 1927 which could be executed against their tarwad by Mamutty, that the execution sale as per E. P. No. 319 of 1944 in O.S. No. 75 of 1927 was null and void as the decree had already been executed and the decree amount realised by the Yogakshema Bank and also because execution had become barred on the date of Mamuttys application, E. A. No. 762 of 1943, and that the execution proceedings were not also binding on their tarwad as they were conducted without proper notice. The properties sold in execution as per E. P. No. 319 of 1944 are the suit properties in O. S. No. 174 of 1945.