THEYGARAYA MUDELIAR Vs. SABAPATHY MUDELIAR

JUDGEMENT

(1.) WE are of opinion that there is no legal evidence on which the deeree of the lower Courts in plaintiff s favour for items 56 F, 41 J, 118 Q, 1181 and 139 F can be sustained. The District Munsifs judgment proceeded on the ground that the right of the defendants Nos. 1 and 2 in these items is barred by the rule of res judicata in consequence of the order on the claim petitions, Exhibits H and J, preferred by defendants Nos. 1 and 2, where these items and other properties were attached in execution of decree in O.S. No. 279 of 1906, bat his view is clearly wrong. The plaintiffs were no parties to those proceedings and they cannot claim the benefits of the orders on those petitions. The claim of defendants Nos. 1 and 2 to those items was disallowed and they did not institute any suit to establish their right to them. The judgment of the Appellate Court with respect to these items is solely based on their omission to assert their rights by a fresh suit, but the attachment was raised within about three months after the disallowance of the claim. WE do not think that the omission to institute a suit within so short a time as three months can afford a tangible basis for an inference that the defendant s Nos. land 2 had no right to those items. They had one year s time for the institution of a suit. The time that elapsed before the attachment was raised was too short to justify any inference against them. The plaintiff had adduced no oral evidence to prove his right to these items. The karayalai was not produced before the Court. There was no other documentary evidence to show that these items fell to the share of the 3rd defendant. WE must, therefore, modify the decrees of the Courts below by disallowing the items mentioned above. There will be proportionate costs to both the parties in all the Courts.