KUNHALAN KUTTY Vs. PATHUMMA

JUDGEMENT

(1.) This appeal is filed by the 5th respondent in I. A. 109 of 1966 filed in the Principal Munsiff s court, Manjeri for passing a final decree in O. S. 392 of 1938 pending before the Munsiff's court, Parappanangadi. O. S. 392 of 1938 was filed in the Parappanangadi Munsiff's court for partition and recovery of the share of the plaintiff and defendants 6 and 7 in the plaint items. A preliminary decree was passed by the Munsiff's court, Parappanangadi on 15-2-1940. The suit is still pending in that court. But the plaintiff filed I. A. 109 of 1966 for passing the final decree in the Manjeri Munsiff's court on 18-1-1966. The final decree and judgment from out of which the second appeal arises were passed by the Manjeri Munsiff's court. The appellant is the 12th defendant in the suit and as already stated 5th respondent in I. A. 109 of 1966.

(2.) Ex. P1 sale deed in favour of the 12th defendant in respect of B schedule items 1 and 2 and D Schedule items 1 to 6 was impeached on the ground that it would not bind the interest of the plaintiff and defendants 6 and 7 in these items because they were not represented in Ex. PI by their de jure guardian. The preliminary decree in allowing the shares due the to plaintiff and defendants 6 and 7 declared that Ex. P1 is not binding on their interests and allowed them to recover their shares in the properties comprised in Ex. P1 also on payment of the proportionate amount of sale consideration which was fixed at Rs. 975/-

(3.) The 12th defendant resisted I. A. 109/66 filed in the Manjeri Munsiff's Court on the grounds that it has no jurisdiction to deal with the final decree application, the application is barred by limitation, the suit has abated on account of the non impleading of the legal representatives of many of the defendants who are dead the plaintiff and defendants 6 and 7 are not entitled to mesne profits and that the 12th defendant should be paid the value of improvements effected in the properties. All the contentions were overruled concurrently both by the Trial Court as well as by the appellate court. The second appeal is directed against the decree and judgment of the appellate judge.