K P SADANANDAN NAIR Vs. M VIMALA

JUDGEMENT

(1.) These two appeals arise from the common judgment in O.S. Nos. 33/76 and O.S. No. 57/77 before the Sub Court, Manjeri.

(2.) Both these appeals arise from the judgment and decree in O.S. No. 33/76. A.S. 439/1993 is filed by the third defendant and A.S. No. 525/1993 is filed by the plaintiff in O.S. No. 33/76. The late father of the appellant in A.S. No. 525/1993 filed O.S. No. 33/76 for a decree of declaration to the effect that he was in possession of the plaint schedule properties and also to set aside the attachment and orders made in execution proceedings in pursuance of the decree in O.S. No. 259 of 1973 on the file of the Sub Court, Palakkad. For the sake of convenience the parties can be referred as plaintiff and defendants as in O.S. 33/76. Plaintiff Sri Parameswaran Nair died during the pendency of the suit and his legal representatives were impleaded as additional plaintiffs. The plaint schedule property belonged to late Parameswaran Nair. The said property was given to the 2nd defendant in the suit as per Ext. A1 for the purpose of running a touring talkies for a period of one year. He was required to remove the sheds put up by him for the said purpose after the expiry of the period mentioned in Ext. A1. Thereafter, the said arrangement was continued as per Ext. A2 for a further period of three years. After the expiry of the said period of three years, the arrangement between Parameswaran Nair and the 2nd defendant continued on the basis of an oral agreement. The 2nd defendant was running the cinema theatre under the name and style "Perumal Talkies". He continued to run the cinema till 21-6-1973 by which date his licence expired. The daily rent was in arrears and the shed was in a dilapidated condition. The 2nd defendant abandoned the cinema and left the place in September 1973. The third defendant, who is the appellant in the other appeal approached late Parameswaran Nair with a request to let out a portion of the plaint schedule properties to him for running cinema. Thus Sri Parameswaran Nair and the third defendant executed Ext. A3 agreement on 1-10-1973 and the plaint schedule property was given to the third defendant for conducting the cinema.

(3.) The first defendant obtained a decree in O.S. No. 259/1973 on the file of the Sub Court, Palakkad" against the 2nd defendant for realisation of Rs. 15.000/- In execution of the said decree, the first defendant attached the plaint schedule property and brought to sale alleging that the 2nd defendant had a subsisting leasehold right over the properties. Late Parameswaran Nair and the 3rd defendant were not parties in the said suit and the execution proceedings. When Parameswaran Nair came to know about the execution proceedings, he filed a claim petition E.A. 469/76 before the executing Court contending that the 2nd defendant did not have any right over the plaint schedule property and the attachment should be set aside. It was also contended that the property cannot be sold in auction since the 2nd defendant does not have any saleable Interest over the same. E.A. No. 469/1976 was dismissed by the Execution Court. O.S. No. 33/76 was filed to set aside the said order of the Execution Court and for other consequential reliefs.