KANNAN ALIAS RAMAN NAIR Vs. VALIA MELADETHIL ALIAS VADAKKE MELADETHIL KOTHAMMA NETHIAR AMMA S SON KOMBI ACHAN

JUDGEMENT

(1.) This is an appeal from the judgment in appeal of the Subordinate Judge of South Malabar at Palghat confirming the decree of the District Munsiff of Alathur in favour of the plaintiff in O.S. No. 90 of 1943. The first defendant in the suit is the appellant.

(2.) The plaintiff had been the karnavan of the Kavasseri Vadakke Meledom. By the decree in O.S. No. 35 of 1917 in the Court of the District Munsiff of Alathur, he was removed from the management of the Edom, but the decree at the same time provided that the plaintiff was to be given 300 paras of paddy per annum by the Edom for his maintenance. The karnavan who was appointed in the plaintiff's place was removed by the decree in O.S. No. 14 of 1925 in the District Munsiff's Court of Alathur and defendants 2 and 3 in the present suit were appointed managers in his place. Subsequent to the decree in O.S. No. 35 of 1917 the managers mortgaged the properties of the Edom. On the 1 of November, 1927, they executed a usufructuary mortgage for Rs. 7,350 in favour of the first defendant, and then on the 24 of July, 1929, they executed a second mortgage of the properties for Rs. 4,450,also in favour of the first defendant. According to the terms of the first mortgage to the first defendant, Ex. D- 4, dated 1 November, 1927, a sum of Rs. 6,728-2-3 was reserved out of the mortgage money for the payment by the first defendant of certain debts due by the Edom. Included in these debts was a sum of Rs. 1,225 which was due under a prior mortgage. The first defendant appears to have paid off the other debts but he did not discharge the amount due under the prior mortgage. Under the mortgage of 1 November 1927, the property had been leased back to the Edom. This arrangement proved unsatisfactory, and by the second mortgage of 24 July, 1929, Ex. D-5 the first defendant was put in possession of the properties subject to certain conditions which are set out in the mortgage deed. Out of the total pattom of 2,514 paras and 5 danglis of paddy the first defendant was to pay himself 1,242 paras of paddy in respect of interest on the mortgage money, 666 paras and 6 1/2 danglis was to be paid by him in respect of Government assessment and michavaram payable to the jenmi; 300 paras of paddy was to be paid to the plaintiff in the present suit in accordance with the terms of the decree in O.S. No. 35 of 1917, and the balance of 305 paras and 8 1/2 danglis of paddy was to be paid to the Edom. Finally, the deed recited that the mortgage amount was liable for arrears of purappad, interest, etc. As already stated the first defendant never did pay off the prior mortgage although the money was reserved with him and the prior mortgagee one Kunhi Raman Nair filed O.S. No. 79 of 1933 to enforce the mortgage. Defendants 2 and 3 were parties to the suit but allowed it to proceed ex parte against them. A decree for sale was passed. The mortgage money was not paid and the properties were brought to sale and purchased by the first defendant.

(3.) The plaintiff had recovered the paddy due to him under the decree in O.S. No. 35 of 1917 and the mortgage deed, Ex. D-5, by attachment up to 1934-35. From January-February, 1935, the payments of paddy fell into arrears and he filed E.P. No. 1319 of 1939 in O.S. No. 35 of 1917. In this petition the paddy was. attached by means of a prohibitory order and the plaintiff was appointed receiver to collect it. Nothing was realised in pursuance of this execution petition and three years later, the plaintiff filed another petition E.P. No. 829 of 1942. A second prohibitory order was passed and then the plaintiff filed the present suit O.S. No. 90 of 1943 as receiver for the recovery of 2,400 paras of paddy by sale of the usufructuary mortgage right of the first defendant in the Edom properties. The first defendant contested the suit on the ground that the usufructuary mortgages, Exs. D-4 and D-5 had been extinguished by virtue of the sale of the properties to him in execution of the decree in O.S. No. 79 of 1933. He also pleaded that the plaintiff and defendants 2 and 3 were barred from impugning the validity of the auction sale to the first defendant by reason of the proceedings in O.S. No. 79 of 1933 and by reason of the decree in O.S. No. 303 of 1940.