THOMMAN THAYAMMA Vs. POULO THOMAS

JUDGEMENT

(1.) Defendants 1 and 2 in a suit to set aside the decree in O. S. No. 33 of 1110 of the District Court, Parur and for a permanent injunction to restrain the said defendants from executing the said decree are the appellants in this appeal. The court below decided the suit pursuant to directions from this Court in A. S. No. 624 of 1958 and in view of this it is sufficient if I refer in this appeal to those facts which are necessary for the disposal of this appeal, One Thomman Kunji, deceased, had three sons - Thomman, Augustinju and Kochuvareed. Defendants 1 and 2 who are the appellants in this appeal are the children of Thomman and the third defendant is the widow of the said Thomman 4th defendant is the said Augustinju and defendants 5 to 8 are the children of Kochuvareed the 9th defendant being his widow. The properties in the suit described in A and B schedules belonged to Thomman Kunji and on his death, according to the plaintiff, Thomman became the Manager and on the death of Thomman, Augustinju became the manager. Augustinju was heavily involved in debts and his creditors therefore filed I. P. No. 9 of 1093 to adjudicate him as an insolvent, in the District Court of Parur. The Official Receiver in whom vested the assets of the insolvent filed a suit O. S. No. 49 of 1099 of the District Court of Parur for partition and recovery of one third share of Augustinju. On the basis of the decree obtained in that suit on 29-5-1103 the Official Receiver sold one third right of Augustinju in the plaint A and B schedules to one Mathu Poulo under Ex. P 2 dated 28-5-1107. The said Mathu Poulo is the father of the plaintiff in the present suit as also the 10th defendant and others. Some time after the said purchase by Mathu Poulo the first appellant in this appeal and another presented a petition in the District Court, Parur for permission to sue in forma pauperis. That suit was for partition and recovery of one third share in the A schedule properties which they claimed to have inherited from their father Thomman and for the recovery of the B schedule properties to which they claimed exclusive title. Several documents and decrees concerning those properties were sought to be cancelled at their instance in that suit. The petitioners were allowed to sue in forma pauperis and the suit was numbered as O. S. No. 33 of 1110. Mathu Poulo who obtained the rights of Augustinju from the Official Receiver was the 6th defendant in that suit. O. S. No. 33 of 1110 was decreed in favour of the plaintiffs therein on 4-12-1945 by Ex. P 4. It may be mentioned that during the pendency of the suit O. S. No. 33 of 1110 the second plaintiff therein died and the second defendant in this suit, by order on application, transposed himself as additional plaintiff in O. S. No. 33 of 1110 and therefore the decree in O. S. No. 33 of 1110 was obtained by the present defendants 1 and 2 as plaintiffs therein. Mathu Poulo who died after the date of the decree and while execution proceedings were being taken was represented in such execution by his children the plaintiff, the 10th defendant and others. The present plaintiff who was so impleaded as legal representatives of Mathu Poulo as additional defendant 27 attempted to set aside the decree by moving a petition under O.9 R.13, but he did not succeed. The present suit has been filed by the plaintiff thereafter. The suit was for setting aside the decree in O. S. No. 33 of 1110 on the ground of fraud in so far as it related to the rights of the plaintiff, 10th defendant and other legal representatives of Mathu Poulo and for a permanent injunction restraining defendants 1 and 2 from executing the decree in O. S. No. 33 of 1110 which they had obtained as plaintiffs. The plaintiff also set up certain special rights for himself and 10th defendant in several items of the suit properties.

(2.) Defendants 1 and 2 who contested the suit denied the allegations of fraud and also denied the special rights which were claimed by the plaintiff for himself and for the 10th defendant.

(3.) The Trial Court, by its judgment dated 31-7-1958, dismissed the suit. The plea of fraud was found against on the ground that the plea did not relate to fraud extraneous to the records of the case, and therefore it was not open to the plaintiff to urge that as a ground to set aside the decree. It was also found that the suit seeking to set aside the decree on the ground of fraud would be barred by limitation. The rights claimed by the plaintiffs in their individual capacity were not adjudicated. An appeal was taken from that decision to this Court as A. S. No. 624 of 1958. This Court agreed with the court below on the question of fraud. But since the plaintiff had set up special rights to certain items of properties, the suit was remanded for adjudication on the question of special rights claimed by the plaintiff to certain items in A schedule and also item 7 in B schedule. After such remand the plaintiff produced certain documents and these were also marked. There was an application by the 10th defendant to be transposed to the plaintiff's array. That was rejected by the court below on the ground that the order of remand by this Court limited the trial to the claim by the plaintiff in regard to the special rights set up in respect of certain items. If so, it was not open to the court below to consider any right of the 10th defendant in the suit properties. Hence the decision in the suit was to be limited to the rights claimed by the plaintiff in regard to the various items, the consideration of which was directed by the judgment of this Court.