RAMA GOUNDAN Vs. VELAPPA GOUNDAN

JUDGEMENT

(1.) Second appeal by defendants against the decree of the Court of the Additional Subordinate Judge of Coimbatore in A.S. No. 11 of 1922 (A.S. No. 44 of 1922, on the file of the District Court). The facts giving rise to this second appeal are these: The defendants instituted a suit against the plaintiffs on foot of a hypothecation bond, and obtained a preliminary decree for Rs. 1,530-2-8 on 26-7-18. The plaintiffs applied to have the decree set aside and it was set aside with the consent of the defendants on the plaintiffs depositing into Court the full decree amount inclusive of costs. The suit was reheard and a revised preliminary decree was passed on 15-3-19. Against this decree the plaintiffs appealed and the appeal was dismissed on 20-10-1919. Thereupon the defendants applied to have a final decree passed, and this was done on 25-11-1919. In pursuance of this decree the mortgaged properties were sold on 8-3-20 and realized a sum of Rs. 1,010, The amount due under the final decree was Rs. 1,634-3-4 with subsequent interest and costs and giving credit for Rs. 1,010 the defendants applied for a personal decree against the plaintiffs for the balance and attached the amount that had been deposited in Court when the first preliminary decree was set aside. The plaintiffs received notice of this application on 12-6-20 and instituted the suit from which this second appeal arises on 12-7-1920 for a declaration that the final decree and all subsequent execution proceedings were null and void and not binding on them.

(2.) The allegation on which this relief was sought are to be found in paragraphs 10, 11 and 12 of the plaint. They are to the effect: that they (plaintiffs) wore kept in the dark about the proceedings relating to the passing of the final decree, that the present defendants so contrived that no notice was personally served on them in those proceedings, that the mortgaged properties which were worth not less than Rs. 3,500 were sold for a shockingly low price of Rs. 1,010, that there was no publication at all of the sale proclamation in the village, that the valuation given in the sale proclamation as also the upset price fixed were too low ; and that the decree amount having been already deposited in Court, there was no necessity at all for further proceedings by the defendants and that the conduct of the defendants in applying for a final decree for the entire amount behind the back of the plaintiffs and ignoring the Court deposit was highly, improper and fraudulent.

(3.) The defendants traversed all the allegations in the plaint and also contended that the suit was not sustainable and that the remedy of the plaintiffs, if any was under Order 21, Rule 90, Civil P.C., as also under Order 9, Rule 13. No oral evidence was adduced before the District Munsif, and, on the documentary evidence placed before him he came to the conclusion that no separate suit lay for the relief claimed and that the defendants were not bound to give credit for the amount which have been deposited when the first preliminary decree was set aside. On appeal the learned Subordinate Judge held that the defendants were bound to give credit for the amount in deposit, that they have failed to do so; and that their conduct in getting a final decree passed for the entire sum due was fraudulent; and relying upon a decision in Hasem Ali Khundahar V/s. Abdul Goffur Khan [1904] 8 C.W.N. 102 he reversed the decree of the first Court and passed a decree for the plaintiff s.