KALI GOUNDER Vs. PALANI GOUNDER

JUDGEMENT

(1.) THE third defendant in O. S. 1353 of 1968, 234 of 1969 and 952 of 1969 who succeeded in the trial court but failed in the lower appellate court is the appellant. S. A. 17, 18 and 19 of 1974, arise out of A. S. 6, 7 and 8 of 1973, which arose out of O. S. 1353 of 1968, 952 of 1969 and 234 of 1969 respectively.

(2.) O. S. 1353 of 1968 was filed by Palani Gounder, the first respondent in S. A. 17 of 1974 against four persons viz. , Seeranga Gounder, Sellammal, Kali gounder and Muthu Gounder for setting aside a summary claim order passed in e. P. 406 of 1968 in O. S. 752 of 1966 on the file of the trial court on 21-81968. O. S. 952 of 1969 and 234 of 1969 were filed by the alienees from Palani gounder for setting aside the same summary order. The suit property belonged on one Ramaswami Gounder who was indebted to several persons. The said ramaswami Gounder filed I. P. 23 of 1956 in the Sub Court, Salem, for getting himself adjudicated as an insolvent. During the pendency of that petition, he decided to settle the matter with his creditors. Consequently, a composition deed Ex. A. 4, dated 18-2-1956 was executed by Ramaswami Gounder whereby it was arranged that all the creditors must be ascertained and the properties of ramaswami Gounder should be sold and the sale proceeds should be distributed amongst the creditors, and some of the creditors were constituted as trustees. In pursuance of that composition deed, the sale deed Ex. A. 1 dated 9-8-1956 was executed in favour of Palani Gounder, the plaintiff in O. S. 1353 of 1968, whereby some of the trustees directed the former to discharge some of the debts. The appellant Kali Gounder was one of the creditors, but his debts were not directed to be discharged by Palani Gounder in the sale deed Ex. A. 1. The appellant therefore filed O. S. 351 of 1968, alleging that the sale under Ex. A. 1, was hit by S. 53 of the T. P. Act. That suit was dismissed on the ground that he could not file the suit merely because he had been left out of account in the sale deed Ex. A. 1. That decree was confirmed by the learned district Judge, Salem, on appeal in A. S. 20 of 1961. In S. A. 767 of 1963, which was filed against that decree it was contended that the sale under Ex. A. 1 by some of the several trustees constituted under the composition deed was void. But it was held that this question cannot be gone into in the suit and it was open to the creditor to attach the property in execution of the decree obtained by him in O. S. 351 of 1968, and the second appeal was dismissed. Subsequently, the appellant filed E. P. 38 of 1968 and got the property attached in execution on 30-1-68. But on 12-3-1968, Palani Gounder, the purchaser under Ex. A. 1, filed a claim petition E. A. 498 of 1968 and it was dismissed after enquiry on 24-8-1968. Subsequently, the appellant proceeded in execution and a date was fixed for sale of the attached property. Thereafter palani Gounder filed O. S. 1353 of 1968 on 13-9-1968 to set aside the claim order dated 24-8-1968 in E. A. 498 of 1968 and obtained an interim injunction in those proceedings restraining the appellant from bringing the property to sale in execution of the decree obtained by him on O. S. 351 of 1968.

(3.) THE allegation in O. S. 1353 of 1968 was that Palani Gounder has obtained title to the property by his purchase under Ex, A. 1, even though it was executed by some only of the trustees constituted in the composition deed Ex. A. 4, and that even if the sale under Ex. A. 1 is not valid, he had perfected his title by adverse possession by the date of the dismissal of the claim petition on 24-8-1968, and therefore the appellant was not entitled to bring the property to sale in execution of the decree. The defence was that the sale under Ex. A 1 is void on the ground that it was not executed by all the trustees appointed in the composition deed Ex. A. 4, and the rights of the parties have to be determined as on the date of the attachment, namely 30-1-1968 and as the period of 12 years has not elapsed on that date, Palani Gounder has not acquired title to the property by prescription and the appellant is entitled to proceed in execution. The same reason was advanced in the other suits for contending that the plaintiffs in those suits are not entitled to any relief.