RAMAN PILLAI Vs. KALYANI AMMA

JUDGEMENT

(1.) The question arising in this Execution Second Appeal is whether the obstruction put up by the original appellants and original respondents 2 to 5 in the Second Appeal against the delivery sought for of 5 items of immovable properties is liable to be removed under O.21 R.97 of the C.P.C. as prayed for by the 1st respondent in the appeal. The execution court upheld the obstruction. The appellate court on the other hand has reversed the decision of the execution court and has ordered removal of the obstruction. The judgment thus passed by the appellate court is under challenge in this appeal.

(2.) The subject matter in dispute is five items of immovable properties having a total extent of 7 acres. The said properties originally belonged to one Thirumalayandi Pillai. He mortgaged the said properties along with other items of properties in favour of one Meeya Pillai. Meeya Pillai filed a suit, O.S. No. 179 of 1954, Sub Court, Trivandrum, to realise the mortgage amount by the sale of the mortgaged properties. On 25-6-1957 a compromise decree as evidenced by Ext.X9 was passed in the suit. As pet the compromise decree the judgment debtor Thirumalayandi Pillai surrendered possession of the decree schedule items 14 to 18, which are the properties in dispute in the Second Appeal to the decree holder to be enjoyed by him in lieu of the interest of the decree debt with the condition that the judgment debtor could discharge the agreed decree debt of Rs. 35,500/- within one year from the date of the decree and get back possession of the properties and on default, the decree holder may sell the properties and realise the decree debt.

(3.) While so the 1st respondent in the Second Appeal filed O.S. No. 18 of 1957 a simple suit for realisation of money against Thirumalayandi Pillai on 5-10-1957. In the suit an attachment before judgment of the properties in dispute and other items of properties belonging to Thirumalayandi Pillai was obtained on 15-10-1957. The suit was ultimately decreed on 16-12-1957.