(1.) DEFENDANTS 1, 2, 4, 7,8 and 9 are the appellants. The suit is for damages. The plaintiff is the karnavan of one of the thavazhies of the Koratty Swaroopam. The Swaroopam was partitioned under an award decree in c. S. No. 172 of 1101 on the file of the Anjikaimal District Court. Plaintiff's thavazhi is A4 thavazhi in that partition. DEFENDANTS 1 to 9 belong to B2 thavazhi. In the partition, a property known as 'pulani Krishi' belonging to the Swaroopam was set apart to the share of B2 thavazhi with liability to discharge certain debts charged on it. One of the debts was due to elayathampuran Kovilakom. That debt was not discharged by B2 thavazhi and the kovilakom sued the Swaroopom in O. S. No. 34 of 1106 of the Anjikaimal District court. Properties belonging to the other thavazhies of the Swaroopom including a4 thavazhi were also attached by the Kovilakom. The decree that was obtained in the case was assigned to Dr. Girijavallabha Menon and in execution of the decree he attached some more properties belonging to the Swaroopom. Since B2 thavazhi was unable to discharge its liabilities the thavazhi appointed the 19th defendant in the case, Paliath kochunni Achen, as its trustee for administering its properties and discharging the liabilities. For paying off the decree debt in O. S. No. 34 of 1106 and discharging other liabilities of B2 thavazhi the 19th defendant assigned plaint items 1 to 18 in favour of the plaintiff's thavazhi under Ext. XVII dated 15. 4. 1112. The consideration for the assignment deed was Rs. 4,105-13-4. Out of this Rs. 3,409-8-7 was reserved with the plaintiff's thavazhi for payment towards the decree debt in O. S. No. 34 of 1106. Another sum of Rs. 210-7-5 was reserved for discharging another debt of B2 thavazhi. The plaintiff's thavazhi paid the sum of Rs. 210-7-5 in Dhanu 1112 and the other sum of Rs. 3,409-8-7 on 11. 12. 1115. The reason for the delay in making the payment of Rs. 3,409-8-7 was that there were two undisclosed encumbrances on some of the properties included in the assignment deed, Ext. XVII. The 10th defendant had obtained a decree against B2 thavazhi in O. S. No. 308 of 1111 of the Irinjalakuda Munsiff's Court and, in execution of that decree, had attached plaint items 1 to 3. Plaintiff's attempt to avert the sale of those items did not succeed and the Original Suit instituted by him for setting aside the sale did not also meet with success. The 10th defendant obtained delivery of possession of the properties on 27. 8. 1113. The 11th defendant had sued B2 thavazhi in O. S. No. 1011 of 1111 of the hinjalakuda munsiff's Court and obtained a decree charged on items 4,11 and 12. In execution of that decree items Nos. 4,11 and 12 were purchased by him and he obtained delivery of possession of those items in Kanni 1116. It was alleged in the plaint that the plaintiff's thavazhi sustained a loss of Rs. 2,105-13-4, rs. 1,655-5-4 on account of the sale of items 1 to 3 and Rs. 450-8-0 on account of the sale of items 4,11 and 12. Interest was claimed on these amounts at 6 per cent per annum from the dates on which the properties were lost to the thavazhi. In the award partition decree there is an indemnity clause to the effect that if, on account of the default of any thavazhi to discharge the debts allotted to its share, any other thavazhi is put to any loss the thavazhi that sustains loss will be entitled to recoup the same from the properties allotted to the share of the defaulting thavazhi. Accordingly, the amount of damages was claimed as a charge on the plaint schedule properties which were set apart to the share of B2 thavazhi under the award partition.
(2.) DEFENDANTS 4, 7, 8, 9, 10, 11, 12, 14 to 18, 20, 21, 30 to 38 and 40 contested the suit. DEFENDANTS 4, 7, 8 and 9, who are members of B2 thavazhi, contended that the plaintiff's thavazhi was not entitled to claim any damages against B2 thavazhi, that their remedy, if any, was against the 19th defendant, the executant of Ext. XVII that they were not entitled to claim any charge on the properties belonging to B2 thavazhi, that the plaintiff's thavazhi did not pay in time the sum of Rs. 3,409-8-7 reserved in the sale deed (Ext. XVII) for payment towards the decree debt in O. S. No. 34 of 1106, that on account of this delay B2 thavazhi sustained losses, that in any case B2 thavazhi was entitled to have the amount claimed in the plaint as damage set off against damages due to them on account of the failure of the plaintiff's thavazhi to pay in time the said sum of Rs. 3,409-8-7, that the amount claimed as damages in the plaint was excessive, and that in any event B2 thavazhi was entitled to a prior charge in respect of survey Nos. 1469 and 1470/1 in plaint items 30 and 31. The 10th defendant contended that the plaintiff was not entitled to claim any charge in respect of the properties purchased by him in court auction. The 11th defendant also contended that the properties purchased by him were in no way liable for the plaint claim. The contentions of the other defendants are not relevant for the purpose of this appeal.
Other thavazhies of the Swaroopam also instituted suits against B2 thavazhi for damages on the basis of the indemnity clause in the award partition. They were O. S. Nos. 154,155 and 157 of 1119. This suit, which was numbered as O. S. No. 143 of 1118, was tried along with those suits. All these suits were subsequently transferred to the Trichur District Court and this suit was re-numbered as OS. No. 3 of 1122 of that court. That court dismissed the suit on the ground that the remedy of the plaintiff, if any, was against the 19th defendant and B2 thavazhi under the sale deed, Ext. XVII, and not under the award partition decree, Ext. VII, and that the suit instituted on the basis of the indemnity clause in Ext. VII was not maintainable. It was also observed in the judgment that the plaintiff had agreed with the 19th defendant to discharge the debt due to the 10th defendant and that the plaintiff could at best claim only damage for the loss of items 4,11 and 12 purchased by the 11th defendant. But, since the suit was not based on Ext. XVII, the plaintiff was not given any relief and the suit was dismissed with costs.
The plaintiff appealed from this decision before the cochin High Court. That Court set aside the decree of the District Court and remanded the case to the Anjikaimal District Court for fresh disposal after allowing the plaintiff to amend the plaint. After remand, the suit was re-numbered in its original number viz. O. S. No. 143 of 1118. The plaint was amended and relief was claimed on the basis of the sale deed, Ext. XVII. The amount was claimed from defendants 1 to 9 and their thavazhi properties. Defendants 4 and 7 to 9 filed additional written statement in which it was contended that the plaintiff's thavazhi was aware of the decrees in favour of defendants 10 and 11 at the time of the sale deed, Ext. XVII, that the plaintiff had agreed to pay off those decree debts, and that, therefore, the plaintiff was not entitled to claim any damages from B2 thavazhi. They also claimed from the plaintiff's thavazhi Rs. 2,700 as damages and paid court fee for that amount.
(3.) THE two main questions that had to be decided in the case were: (1) Whether the plaintiff's thavazhi was entitled to claim any damage from B2 thavazhi on account of the loss of plaint items 1 to 4 and 11 and 12; and (2) Whether B2 thavazhi was entitled to get from the plaintiff's thavazhi the amount claimed as damages in the counter claim on account of the default of the plaintiff's thavazhi to pay in time the amount reserved in the sale deed, Ext. XVII, for payment towards the decree debt in O. S. No. 34 of 1106. On the first question the court below found that the plaintiff's thavazhi was entitled to get from B2 thavazhi the amount claimed in the plaint as damages. On the second question also the finding of the lower court was in favour of the plaintiff. It was held that since there were undisclosed encumbrances on some of the properties included in the sale deed the plaintiff's thavazhi was not bound to pay the reserved amount and that, therefore, B2 thavazhi was not entitled to claim any damages on account of the failure of the plaintiff's thavazhi to pay the reserved amount in time. THE counter claim was, therefore, disallowed and the suit was decreed with costs as prayed for in the amended plaint against defendants 1 to 5 personally and the assets of B2 thavazhi.
In this appeal, learned counsel for the appellants, urged before us the following points: (1) The plaintiff was aware of the attachment of plaint items 1 to 3 by the 10th defendant for the decree debt in o. S. No. 308 of 1111 at the time of the execution of the sale deed (Ext. XVII)and the plaintiff had undertaken to discharge that debt. The plaintiff is, therefore, not entitled to claim any damages on account of the sale of items 1 to 3 for that decree debt; (2) The suit is barred by limitation as regards the claim for damages in respect of items 1 to 3, having been brought more than six years after the date of the sale deed (Ext. XVII) and more than three years after delivery of those items; (3) The court below ought to have allowed the counter claim of B2 thavazhi for damages on account of failure of the plaintiff's thavazhi to pay in time the amount reserved in the sale deed for payment towards the decree-debt in O. S. No. 34 of 1106 and ought to have set off such damages against the plaint claim; (4) The court below went wrong in giving a personal decree against defendants 1 to 5.;