NAMBALLA APPANNA Vs. THAKURU JAMUNABAI

JUDGEMENT

(1.) Notwithstanding the tangled web of facts, the real controversy in these two appeals lies within a narrow orbit. Shortly stated, the question is whether a decree passed in a small cause suit S.C.No.99 of 1956, could and did charge the plaintiffs in one of these two actions O.S.No 208 of 1961, with liability and whether their interest in the property now in dispute, was validly sold in the execution sale held in enforcement of the decree in S.C.No. 99 of 1956.

(2.) These appeals arise out of two suits O.S.No 96 of 1960 and O.S.No, 208 of 1961. In the suit of the later date, the three plaintiffs are brothers, the youngest of whom being a minor on the date of the suit, was represented by his elder brother, the 1st plaintiff. They are the sons of Thakur Ingraj Singh, who died on 12-4-1945 in their infancy. The plaintiffs had an elder brother Jayaram Singh, who, it is stated, was in charge of the family's affairs till he fell ill in 1952, He died unmarried in 1954, The mother of the plaintiffs Jamunsbai who is cited as the 3rd defendant, contracted a debt under a promissory note dated 25th March, 1953, which was made in favour of the 2nd defendant. The payee sued for the recovery of the money in small cause suit No. 99 of 1956. The maker of the note was alone sued and an exparte, decree followed on 11-3-1955. Execution proceedings in E P.No. 368 of 1957 were taken, which resulted in the sale of one acre of land of the joint family of the plaintiffs. The 1st defendant was the purchaser at the execution sale held on 24-3-1958 which was confirmed on 24-4-1958. He applied for delivery of possession in E.A.No. 451 of 1959. The plaintiffs allege "delivery was only on paper" and it was recorded as having been effected on 25-12-1959. It is averred by the plaintiffs that the actual effective possession of the land was held by Padma Charan Mohanty, who was entitled to it as their lessee under a deed of 17th November, 1958. The lessee, referred to hereinafter, briefly, as Mobanty, objected to the validity of the proceedings by filing E.A.No. 13 of 1960, The Court overruled his objection Mohanty filed a suit under Order 21, Rule 103, Civil Procedure Code and that suit is O.S.No. 96 of 1960 which gives rise to the companion appeal.

(3.) The plaintiffs state that they became aware of the decree and execution proceedings impugned by them only in January, 1960, when Mohanty filed E.A.No. 13 of 1960. They aver that neither the promissory note, nor the decree obtained on toot of it, nor the execution proceedings, bind them. For one thing, there was no debt at all incurred by the mother, secondly, there was no necessity for the debt and the decree could not in any event bind them and their property could not be sold thereunder. They, therefore, pray for a declaration that the decree and the execution sale do not bind them and this is coupled with the prayer for an injunction to restrain the first defendant from interfering with the possession of their lessee, Mohanty.