CHELLAMMAL Vs. AIYAMPERUMAL KUDUMBAN

JUDGEMENT

(1.) (14 February 1934.) The plaintiffs are Indian Christians and they attacked in this suit the decree obtained against them in O.S. No. 243 of 1923 on the file of the Tuticorin Munsif's Court (same as O.S. No. 91 of 1924 on the file of the Srivikuntam Munsif's Court) by defendants 1 to 3. The decree is attacked on two grounds: First, that it was obtained by the fraud of defendants 1 to 4 and secondly, that there was gross negligence on the part of defendant 7, the plaintiff's mother. Although the relief claimed is a declaration that the decree in the former action is not binding, the suit may be treated as one brought to set aside that decree. There is also a prayer for an injunction to restrain defendants 1 to 4 from executing that decree.

(2.) The learned District Munsif rightly points out that several relevant documents have not been filed, and this has been responsible for a great deal of inconvenionce that has arisen. The facts, so far as I have been able to gather them, may be shortly stated. The suit property belonged to defendant 5 and he created a mortgage over it in 1903 in favour of a nidhi of which defendant 4 was the secretary. That mortgage was assigned by defendant 4 in favour of Perumpadia Kudumban, the father of defendants 1 to 4. In 1916 defendant 5 sold the property to Nanmai Alwar Nadar, the father of the plaintiffs (Ex. D). Perumpadia filed O.S. No. 111 of 1918 against defendant 5 and his son defendant 6 to enforce the mortgage of 1903. To that suit Nanmai Alwar Nadar was not impleaded as defendant: this nonjoinder of the purchaser of the equity of redemption is the origin of the litigation that has ensued. To return to O.S. No. 111 of 1918, the District Munsif decreed that suit. Defendants 5 and 6 filed an appeal and the Subordinate Judge reversed the trial Court's decree. Perumpadia then filed S.A. No. 965 of 1919, the respondents to that appeal being the present defendants 5 and 6. On 3 March 1920, Sadasiva Iyer and Spencer, JJ. set aside the appellate Court's decision and restored the decree of the District Munsif granting a mortgage decree. Perumpadia executed that decree and himself purchased the mortgaged property. When he tried to take possession, he was resisted by Nanmai Alwar Nadar. There was a re-inquiry Under Order 21, Rule 99, Civil P.C., and Perumpadia's application for possession was dismissed. To set aside the order of dismissal, the suit already referred to, O.S. No. 243 of 1923, was filed Under Order 21, Rule 103, by Perumpadia's sons, the present defendants 1 to 3. That suit was brought against the present plaintiffs, Nanmai Alwar Nadar having apparently died in the meantime. The present action as I have said is brought for the purpose of getting rid of the decree in O.S. No. 243 of 1923. The plaintiffs as already stated complain that the decree was procured by the fraud of defendants 1 to 4 and also that their mother, defendant 7, was guilty of gross negligence. (I must observe that plaintiff, it is said, was a major even at the time of the previous suit). The records of O.S. No. 243 of 1923 have not been filed, but that suit seems to have been decreed on 21 March 1925. Whether the previous suit (O.S. No. 243 of 1923) was brought only for a declaration or whether possession also was prayed for, does not appear. However Ex. 1, dated 14 March 1926, shows that in execution of the decree in that suit, defendant 4 on behalf of defendants 1 to 3 obtained delivery of the property. Subsequently, it appears at some time--the date is not given--the property was conveyed by defendants 1 to 3 to defendant 4. This suit was commenced on 1 July 1926, and the arguments have proceeded on the assumption that defendant 4 had by then become the purchaser.

(3.) The District Munsif has found that no fraud has been made out but that gross negligence on the part of defendant 7 has been proved; but on the ground that possession should have been asked for as further relief Under Section 42, Specific Relief Act, he has dismissed the suit. On this point the learned Subordinate Judge, agreeing with the Munsif, has held that the suit was properly dismissed; but on the questions regarding fraud and gross negligence, he has given no findings.