T HEERACHAND Vs. SARASWATHY AMMAL

JUDGEMENT

(1.) THE plaintiffs are the appellants.

(2.) THE plaint averments are as follows: THE plaintiffs had purchased certain properties (hereinafter referred to as the Properties) under two sale deeds dated 14.4.1971 for valid consideration. THE properties had been the subject matter of attachment in execution of a decree in O.S. No. 59 of 1956 on the file of the Sub Judge, Cuddalore obtained by South Arcot District Co-operative Supply and Marketing Society, Limited (hereinafter referred to as the Society against one Thirupulisami Naidu, who along with his sons had sold the property to the plaintiffs. THE defendants are his daughters-in-law, daughter and sons. THE vendor of the plaintiffs had informed them at the time of the sale deed that in the appeal filed against the decree in O.S. No. 59 of 1956 the High Court had asked him to execute a security bond as a condition for granting stay. THE security bond was executed on 26.7.1958. THE vendor had represented to the plaintiffs that apart from the security bond, there was no encumbrance on the suit property. THE plaintiffs, believing the representations of the vendors, paid the entire consideration and took the sale deeds. THEreafter, the appeal was finally disposed of and the Society viz., the decree holder brought the suit properties for sale in E.P. No. 211 of 1963. Since, the vendors did not take any steps to avert the sale, the plaintiffs had to periodically pay money into court in the E.P. proceedings totalling Rs. 12,000. Subsequently, the properties came to be sold in court auction. THEreupon, the plaintiffs filed an application under O.21, Rule 89, C.P.C. to set aside the sale. THE sale was set aside upon the plaintiffs depositing a sum of Rs. 1,02,760. If they had not deposited it, the plaintiffs would have lost the properties. THE plaintiffs had retained the sum of Rs. 15,000, out of which, a sum of Rs. 1,000 had been paid to said Thirupulisami Naidu and his sons and Rs. 12,000 was periodically paid in the E.P. proceedings. THE balance due was Rs. 2,000 out of Rs. 15,000. Thirupulisami Naidu and the sons filed a suit for re covery of the said sum which was O.S. No. 154 of 1974 and the suit was dismissed. While dismissing the suit, the Sub Judge, Cuddalore found that the plaintiff'svendor had not disclosed all the encumbrances and defects on the Properties and the plaintiff had parted with Rs. 1,41,760 for no fault of theirs and that morally as well as legally, the plaintiff'svendors were bound to indemnify the plaintiff atleast to the extent of the amount retained under the sale deeds. THEreafter, Thirupulisami Naidu als o setup his sons to file a suit for partition, O.S. No. 16 of 1975 in which Thirupulisami Naidu and the society were made as the defendants and all the properties belonging to Thirupulisami Naidu, except the properties sold to the plaintiffs, were made the subject matter of partition and interim order was also obtained restraining the Society from bringing to sale the other properties. Thus, the defendants saw to it that the properties purchased by the plaintiff alone would be sold in execution of the decree obtained by the Co-operative Society. According to the plaintiffs, their vendors had deliberately and dishonestly manoeuvered to have their properties sold in court auction. THErefore, the plaintiffs were forced to deposit the sum of Rs. 1,02,760. Since Thirupulisami Naidu and his sons are bound in law to discharge the decree in O.S. No. 59 of 1956 and since the plaintiffs were forced to deposit the sum on account of fraudulent and dishonest acts of Thirupulisami Naidu and his sons, the plaintiffs had to salvage the property they had purchased. In the meantime, Thirupulisami Naidu had executed four settlement deeds in favour of his daughter-in-law in order to defeat and delay the claim of the plaintiffs. THEy are void and inoperative. THE defendants are liable to pay Rs. 1,00,760 and since the defendants have no other property except the "A" schedule property, the plaintiffs are entitled to have a charge over the same. THE plaintiffs issued a notice to which the defendants gave a reply containin g untenable allegations. Since the defendants are liable to pay the amount, the suit has been filed on behalf of the plaintiff and the creditors.

(3.) THE learned counsel drew attention to the recitals in the various documents: Ex.A-3, dated 26.7.1958 which is the Security Bond executed by the vendor of the appellant in compliance with the order of this Hon"ble Court in C.M.P. No. 5022 of 1957 in A.S. No. 403 of 1957 arising out of the decree in O.S. No. 59 of 1956. It is stated therein that if the appeal ended in favour of Thirupulisami Naidu, the vendor the bond would get discharged. Otherwise, the bond will be in force until the decree is fully satisfied. THEre is also an undertaking in clause 3, wherein the said Thirupulis ami Naidu undertakes to deposit the amount for which he is liable if A.S. No. 405 of 1957 fails or any appeal therefrom and that if he failed to so deposit, he would be liable under the said bond upto a limit of Rs. 15,000.