RAMAN NARAYANAN Vs. CHATHUNNY

JUDGEMENT

(1.) This Second Appeal is by the plaintiff whose suit for redemption after ignoring a prior decree and sale in execution following, of the equity, on ground of fraud has been dismissed concurrently by the courts below.

(2.) The plaint schedule garden land 2 acres 67 cents in extent with a building thereon and situate in Mukundapuram Taluk belonged to the plaintiff. He first executed on 2-11-1105 Ext. C chitty hypothecation bond in favour of Edathuruthi Church securing the property for the payment of future subscriptions in a chitty. Later but in the same year he executed a simple mortgage over it in favour of the 3rd defendant for a sum of Rs. 400/-. He finally, on 13-6-1106 executed Ext. B usufructuary mortgage of the property in favour of the defendants 1 and 2, for a sum of Rs. 140/ pledging also by way of further security certain paid-up subscription in another chitty. Under the provisions of Ext. B the yearly income from the property was estimated at Rs. 120 and this amount the defendants 1 and 2 undertook to utilise; as follows: to pav therefrom Rs. 90 in three instalments of Rs. 30 each to the Edatburuthi Church towards the plaintiffs chitty subscriptions under Ext C, appropriate Rs. 20 towards maintenance charges and adjust Rs. 10 in partial payment of thc interest of Rs. 22-6-0 due on their mortgage amount of Rs. 140. The balance of Rs. 12-6-0 was to he made up by the plaintiff at the end of every year. It would appear that the plaintiff did not pay this amount of Rs. 126-0 and he also defaulted to pay the tax of Rs. 2-6-4. On 16-10-1111 defendants 1 and 2 filed suit O. S. 826 of 1111, copy of the plaint is Ext. A, against the plaintiff for enforcing Ext. B mortgage. Ext. A mentioned that since 1109 the schedule property yielded only Rs. 30 on the whole, Rs. 20 of which went to the maintenance charges leaving only Rs. 10 for adjustment towards interest on the mortgage amount, the plaintiff had not also paid Rs. 12-6-0 undertaken by him, and had further defaulted the payment of yearly tax due on the property. The claim was therefore laid in Ext. A for realisation of a total amount of Rs. 287-3-0. The suit was decreed ex parte against the plaintiff on 812-1111 and commencing execution on foot of the decree on 25-2-1112, defendants 1 and 2 purchased the schedule property (subject to the prior encumbrances) themselves in court sale on 1-10-1112 in full satisfaction of their decree. They thereafter, obtained symbolical delivery on 21-1-1113 under Ex. VI dated 27-5-1113. Soon later under Ext. E dated 27-5-1113 defts. 1 & 2 sold the property to the 3rd defendant for a sum of Rs. 1,500 providing for payment to the Edathu-ruthi Church of Rs. 779-12-0 and for adjustment in favour of 3rd defendant of Rs. 700 under his own mortgage so as to leave a sum of Rs. 20-4-0 only to be paid to them. The 3rd defendant it would appear, did not pay off the Church as per the recital in Ext. E. However he entered into compromise with them in suit O. S. 674 of 1116 later on filed by them whereby they agreed to accept Rs. 650 in satisfaction. Reciting this amount, the 3rd defendant subsequently sold the property under Ext. VII dated 18-11-1116 in favour of the 4th defendant for a sum of Rs. 1000.

(3.) While so, plaintiff filed Ext. I petition supported by affdavit Ext. II on 20-91123, under Or. 9, Rule 13 to set aside ihe ex partc decree against him in O. S. 826 of 1111. The plaintiff explained the delay in the filing of Ext. I on account of the fact that he left for Bombay in 1107 and had come back once only in 1108 during all the interval and only after 10-9-1123 when he returned, he knew of the decree. He averred further that the defendants 1 and 2 had fraudulently suppressed the processes both in the trial and execution proceedings and so had obtained ex parte decree for more amount than due and also the sale in execution in their favour. The defendants 1 and 2 and also the 4th defendant who were made respondents to the petition objected. In the result the plaintiff's petition was rejected by Ext. III order dated 8-7-1124 because the court was "not satisfied that the plaintiff has discharged the burden of proving that summons was not duly served and that he had no knowledge of the suit or the decree within the period of limitation provided by the law". This suit was thereafter filed on 24-8-1124 for redemption of Ext. B mortgage after setting aside the decree and execution proceedings in O. S. 826 of 1111 on account of the fraud of 1 and 2 defendants and ignoring the subsequent alienations in favour of 3 and o defendants as merely collusive. The plaint alleged that the defendants 1 and 2 had knowledge of the fact that the plaintiff was not available at his original address when they filed O. S. 826 of 1111 and their getting the plaintiff declared ex parte for purpose of that suit was fraudulent. The plaint further averred that the defen-dants 1 and 2 had by their failure to account for the full income of the properly as undertaken by them paid themselves off so far as Ext. B amount was concerned. The suit and decree in O. S. 826 were therefore conceived in fraud and could not be sustained; the execution proceedings based thereon had also to go. The suit was contested by the 4th defendant on the main basis that the suit was not maintainable particularly after the disposal against the plaintiff of his restoration application containing the same averments as to fraud and falsity as here. On the motion of the 4th defendant unsuccessfully opposed by the plaintiff, to take up issues 1, 4 and 5 as preliminary issues, the trial court heard the case without posting it for evidence and in the end dismissed the suit. The lower appellate court has now confirmed this decree and hence this Second Appeal,