AKKALI THIRUVENGADAM MAMMAD Vs. CHATHAMKARA AMMAD

JUDGEMENT

(1.) This second appeal arises under the following circumstances : The plaintiff who is a junior member of a tar-wad sued to have a declaration that the decree in A.S. No 138 of 1917 passed against the 5 defendant as karnavan of the tarwad is not binding on him, and for an injunction restraining the decree-holders from executing it. At one stage the plaintiff maintained that defendant 5 was not karnavan at the time of the decree, but that position he gave up subsequently. His main contention is that, as the karnavan did not contest the appeal, the tarwad was not represented; if that argument is not accepted, he contends that the karnavan was so grossly negligent that the decree must be held to be not binding on the tarwad. Both the lower Courts dismissed his case and he appeals.

(2.) The appellate judgment in A.S. No. 138 of 1917 was passed in appeal against the judgment in O.S. No 153 of 1915, That suit was by certain melcharthdars from one Achotti to recover the paramba from one Avulla, who held under the karnavan. The trial Court therein held that the title was in Achotti and gave a decree for possession of the paramba. It also hold that certain payments of rent by Avulla to the karnavan were not honestly made, and gave a decree for those rents against Avulla. The appellate Court held that the payments of rent to the karnavan were binding on Achotti, so far as Avulla was concerned but went further and held that Achotti could recover them from the tarwad. The karnavan had engaged a vakil to represent him in the appeal, but when it came on for argument, the vakil said he had no instructions.

(3.) The present appellant's first contention; is that, in these circumstances, the tar-wad was not represented in the appeal. I do not follow this contention. An ex-parte decree is just as binding as any other until it is set aside. The tarwad had notice of appeal through its karnavan by whom it was represented throughout and did not choose to appear. I am not referred to any decision which goes to the length of saying that in such circumstances the tarwad was not represented in the proceedings. This contention was never put forward in the plaint and it appears to me to be untenable. There remains the second contention, namely, that the failure of the karnavan to contest the appeal was such gross negligence that the decree will not bind the tarwad. In order to see whether the karnavan was guilty of negligence in not contesting the appeal, it is essential to put ourselves into his place at the time the appeal came up for hearing. The point which went against the karnavan in the appeal judgment was that the tarwad was liable to Achotti for the rents paid by Avulla to the karnavan. No doubt the plaintiffs in that suit had asked in the alternative for the recovery of the rents from the tarwad but the trial Court had refused that relief and the plaintiffs had not appealed. The appeal was by Avulla and in his appeal petition he did not put up any alternative prayer that the rents should be decreed against the tarwad. Nor had he even put forward such a plea in his written statement in the suit. The appellate Court thus went out of its way to grant relief against the tarwad for which no one had asked. There was nothing in the grounds of appeal filed by Avulla to put the karnavan on guard-that appellate Court might pass a decree for the rents against the tarwad, and therefore there was nothing which, it was necessary for him to contest on behalf of the tarwad. I find it very difficult to hold that in such circumstances the karnavan was negligent in not contesting the appeal and I am certainly not prepared to differ from the lower appellate Court in holding that he was not.