Decided on April 13,1955

KALI Respondents


- (1.) Defendant 1 in O.S. No. 91 of 1122 on the file of the Trichur District Court has brought this appeal against the decree passed in the suit declaring that the decree in O.S. No.75 of 1116 on the file of the said court is not binding on the plaintiffs and defendants 2 to 12 in the present suit, and their illom, to the extent of Rs. 2471-8-5, and interest and costs thereon. On 16.9.1107 the appellant obtained a simple mortgage for Rs.14,000/- from the then undivided Kanipeyuur Illom of which the plaintiffs and defendants 2 to 12 now form a divided branch. Defendant 2 is the seniormost male member of the branch. Under a partition arrangement in the Illom (9.7.1111) the liability for the mortgage debt was to be shared equally between the branch of defendant 2 and another branch of which one Subramonian Nambudiri was the managing member. Subramonian Nambudiris branch first executed a renewed mortgage for their share of the debt and afterwards discharged it. O.S. No. 75 of 1116 was instituted by the appellant against the branch of defendant 2 for realization of the debt due by that branch by the sale of its share of the mortgaged property and personally from defendants 1 to 4, who had joined the execution of the mortgage.
(2.) All the members of the Illom were made defendants to that suit but defendants 2, 4 and 5 in the present suit (defendants 1, 3 and 4 there) alone entered appearance and contested it. They filed a joint written statement; all the other defendants remained ex parte throughout. Even those defendants who contested abandoned their contest after a certain stage. The result was that the appellant was granted a decree for the full claim set out in the plaint, namely, Rs. 13216-8-0 with future interest and costs. The mortgage provided for interest at 6 3/4 % per annum on the principal amount and 12% on arrears of interest. The amount claimed in the plaint was arrived at by calculating interest on the principal amount and on the arrears of interest at the rates specified in the document.
(3.) The main contention raised by the written statement filed in that suit was that the defendants and their illom were agriculturists within the meaning of the Cochin Agriculturists Relief Act, XVIII of 1114, and that, therefore, the plaintiff could claim only the principal amount of Rs. 7000/- and 6% simple interest thereon. Ext. B in the present suit is the judgment in OS. No. 75 of 1116 and it shows that on the date the suit was set down for hearing, viz., 16.7.1117, the contesting defendants did not enter appearance and their advocates reported that they had no instructions. The court, therefore proceeded to judgment accepting the affidavit filed by the plaintiff (the appellant) in proof of his claim as made in the plaint. Afterwards an attempt was made by defendants 2, 4 and 5 to reopen the suit but that proved unsuccessful. (Vide Ext. VII the petition and Ext. D the order). Even that petition happened to be dismissed for non prosecution but in its order the court, however, stated that the grounds alleged to reopen the suit were insufficient in that behalf.;

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