Decided on October 03,1962



- (1.) This Second Appeal has been referred by the Single Judge to the Division Bench as he thought that there was some conflict in the rulings which may govern the decision of this case. The facts of the case are briefly as follows: The suit was for redemption of a mortgage evidenced by Ext. A executed by one Thommen Cheria, the father of the plaintiff and 4th defendant in favour of the 2nd defendant, after setting aside a sale held in execution. The 1st defendant was the owner of the properties. He executed a kanom in respect of these properties in favour of four strangers. Thommen Cheria purchased the right from one of the kanomdars and mortgaged the same under Ext. A to the 2nd defendant for Rs. 1,000/-. The 1st defendant, instituted a suit O.S. No. 4 1098 claiming michavaram in respect of these properties. Thommen Cheria was the 7th defendant in that suit. He was impleaded as the assignee of the kanom right from one of the kanom-holders. It was alleged by the plaintiff that in execution of the decree in O.S. 4 1098 the kanom right in the property was sold and was purchased by the 1st defendant and that at the time of the execution sale Thommen Cheria was dead. The exact date of the death of Thommen Cheria was alleged in the plaint to be on 19-4-1113. The execution sale took place on 19-12-1113, and the sale was confirmed on 18-1-1114. Ext. II is the sale certificate. After the sale the 1st defendant transferred the property to one Koshi under Ext. D. Koshi in turn transferred that right to the 2nd defendant under Ext. E. It is common ground that if Thommen Cheria died on 19-4-1113 and that if the legal representatives of Thommen Cheria were not impleaded in execution to represent the estate of Thommen Cheria that sale would not bind the estate of Thommen Cheria.
(2.) The contentions of the defendants were that there was no evidence to show that Thommen Cheria died on 19-4-1113, and that the plaintiff was not entitled to impeach the validity of the sale in this suit as that was a matter relating to execution, discharge or satisfaction of the decree in O.S. No. 4 1098. They also contended that the plaintiff and the 4th defendant were impleaded as legal representatives of Thommen Cheria on 1-3-1117 and it was after they were impleaded that the property was delivered over through court. In any event they contended that the suit was not maintainable and prayed for the dismissal of the same.
(3.) The Trial Court came to the conclusion that Thommen Cheria died on 19-4-1113, and that the sale was not a nullity, even though the heirs of Thommen Cheria were not impleaded, but as the 2nd defendant was a trustee for the plaintiff of the right purchased by him under Ext. E, the plaintiff was entitled to redeem the properties. The lower appellate court, on appeal, held that there was no evidence to show that Thommen Cheria died on 19-4-1113, that the 2nd defendant was not a trustee of the plaintiff by virtue of his purchase under Ext. E, and that the plaintiff had no right to redeem. Therefore, that court dismissed the suit, reversing the decree of the Trial Court. It is against this decree that this appeal has been filed by the plaintiff.;

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