M SOMASUNDARAM PILLAI Vs. M RAMASWAMY

JUDGEMENT

(1.) The plaintiff is the appellant. He filed the suit to set aside a claim order dated 20-9-1974 passed in E. A. 541 of 1973 in 0. S. 173 of 1971 on the file of the learned Subordinate judge. Tirunelveli or. in the alternative to pass a preliminary mortgage decree for the plaint amount with subsequent interest. The total amount claimed in the suit was Rs. 56.615. The suit 0. S. 173 of 1971 was filed by the second defendant against the first defendant on 23-12-1971. for the recovery of certain amount of money and that was decreed on 31-11973. In execution of the said decree, the second defendant attached certain immovable properties of the first defendant on 10-7-1973. and brought the properties to sale. At that time the plaintiff who is the elder brother of the , first defendant filed E. A. 541 of 1973 praying that the properties should be sold subject to an equitable m mortgage in his favour on the ground that there were certain money dealings between him and his brother and a sum of Rs. 56615 was due and as security f,)r the payment of the money, the first defendant had equitably mortgaged the suit properties. That petition was dismissed. Thereafter the present suit has been filed.

(2.) The second defendant contended that the equitable mortgage claimed by the Plaintiff in his favour was not genuine, that it was created for the purposes of depriving the second defendant of the fruits of his decree and that in fact the first defendant did not owe any money at all to the plaintiff and because of the relationship between them. collusively and in order to deprive the right of the second defendant. to proceed against the i7irst defendant, they have created certain bogus transactions of dealings.

(3.) It may be mentioned that the first defendant remained ex parte.