ITTIAVIRA THOMMEN Vs. CHANDY ABRAHAM
HIGH COURT OF KERALA
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(1.) THESE appeals arise from a single appellate order in execution of the decree in O. S. No. 816 of 1109 on the file of the District munsiff's Court of Meenachil. S. A. No. 400 is by the defendant-judgment-debtor while S. A. No. 410 is by the additional plaintiffs 3,4 and 6. THESE appeals came before a Single Bench in the first instance and were referred to a division Bench as they raised questions of some importance.
(2.) THE second plaintiff is the mother of the plaintiffs 3 to 6. Her deceased husband, the original plaintiff, obtained the decree for money in question against his brother the defendant for his share of property left out in a partition between them. THE ultimate decree was passed by the high Court on 13. 1. 1111. THE original plaintiff died during the pendency of the second appeal in the High Court and the plaintiffs 2 to 6 had been impleaded there as his legal representatives, 2nd plaintiff being appointed as the guardian ad litem of children the plaintiffs 3 to 6.
On 17. 3. 1114 the 2nd plaintiff acting for herself and as guardian of the other plaintiff gave Ext. I assignment of the decree in favour of one Devasia Varkey and, in due course, on 20. 2. 1115 the assignee obtained satisfaction from the judgment debtor outside court but the fact of assignment or its satisfaction was not reported to court by either the assignee or the debtor. On 11. 12. 1119 the 3rd plaintiff who had by that time become major applied to execute the decree professing himself for that purpose to be the guardian of his brother the 4th plaintiff and his sister the 6th plaintiff, the 5th plaintiff sister having been married away in the interval. This application was resisted by the defendant on the ground that the decree debt had been discharged by payment to the assignee and there was no subsisting decree available for execution. He challenged the right of the 3rd plaintiff to act as guardian of the plaintiffs 4 and 6 in any event.
The executing court passed orders on the execution application aforesaid on 27. 10. 1120 dismissing the same in the light of the assignment of the decree which it held to be valid. On appeal by plaintiffs 3, 4 and 6 the District Court held that the executing court was bound to execute the decree so long as it stood undischarged on its records and remanded the execution case. The High Court in second appeal by the defendant upheld the order of remand as passed by the District Court and gave further direction.
(3.) THE executing court subsequently passed orders on 21. 10. 1950 that the decree had been validly discharged and further that execution was barred by limitation. In the appeal preferred to the lower appellate court by the plaintiffs 3, 4 and 6 that court held that Ext. A assignment was a bona fide transaction fully supported by consideration and there was also no reason to think that the discharge pleaded by the defendant was fictitious; but all these could not avail against the 3rd plaintiff inasmuch as there had been no certification of satisfaction of the decree. THE only question then was whether the execution of the decree was barred by limitation or not and on this the learned District Judge held that there was no bar of limitation and the 3rd plaintiff was entitled to execute the decree. He, however, confined the execution to the share of the 3rd plaintiff alone, in the view he took that the 3rd plaintiff could look only for himself and the 2nd plaintiff had validly assigned all her one-half share of the decree and had not also relinquished her guardianship over the plaintiffs 4 and 6.
Learned Counsel for the plaintiffs 3, 4 and 6 raises the question that if the 3rd plaintiff's share of the decree amount is allowed to be recovered, there was no reason why the recovery of 4th plaintiff's share also should not be granted seeing that there was no question of minority at this stage so far as he was concerned. Learned Counsel for the defendant submitted that the court below rather misled itself in thinking that the 2nd plaintiff was entitled to one-half of the decree rights while in fact her right was equal to the share of her sons the 3rd and 4th plaintiffs individually and therefore she was entitled to only 1/3 right and he fairly conceded that if this Court was of opinion that the order for execution passed by the lower appellate court was at all right then the 4th plaintiff could also be allowed to execute for his share so that the exemption granted by the court below to the extent of one-half would have to be reduced to one-third.;
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