V. GEERI NAICKEN Vs. NARY AND ORS.
LAWS(KER)-1955-8-29
HIGH COURT OF KERALA
Decided on August 12,1955

V. Geeri Naicken Appellant
VERSUS
Nary And Ors. Respondents

JUDGEMENT

Koshi, C.J. - (1.) THIS is a Plaintiff's appeal. The suit giving rise to it was to enforce a hypothecation bond Defendant executed on her own behalf and on behalf of her minor children, Defendants 1 to 3, in favour of the Plaintiff, Defendant 5 and their mother Defendant 6. The Plaintiff and' Defendant 5 were also minors on the date of the hypothacation bond. The said bond is Ex. A in the ease, it bears the date 6 -12 -1099. and is in the sum of Rs. 2,000. Interest at 9 % per annum is provided for in the document and the amount was payable only six years since. On 22 -6 -1910 the Plaintiff instituted a suit in forma pauperis for partition of his family properties. The right under this bond was included as a partible asset and the prayer with respect to it was that there should be a decree for recovery of the amounts due thereunder and that those amounts should also be divided among die sharers. Likewise a claim under another hypothecation bond was also included in the suit and similar prayers were made regarding the amounts due under that bond as well. The paupet application was in due course registered as a suit in O.S. 70 of 1116. Defendants 1 to 3 here were not impleaded in that suit, but Defendant 4 was -Defendant 9 there. On 13 -12 -1118 the Plaintiff moved the Court that as besides partition, recovery of the amounts per two hypothecation bonds were also included in die suit, the suit was open to the objection of multifariousness, and that the claims for the amounts due as per two bonds may be registered as two separate suits (vide Ex. I). The Court allowed the prayei and directed that O.S. 70 of 1116 will be treated a partition suit pure and simple and that the claims in respect of die two bonds would be registered as two separate suits (vide Ex. C). The Plaintiff was directed to file separate plaint in respect of the bonds and the present suit of O.S. No 39 of 1119 arose from the plaint filed pursuant to", the Court's order. The new plaint was filed in Court on 26 -3 -1119. In diis plaint Defendants 1 to 3 were also made parties.. That was certainly going beyond die direction the Court gave in the matter. An important question arising for decision in the appeal is whether the plaint should be held to have been laid on 26 -3 -1119, when the so -called amended plaint was produced in Court.
(2.) AFTER the plaint in O.S. No. 39 of 1119 was filed the case had a chequered history, but we are not concerned with much of. it for the purpose of this appeal. First there was an ex parte decree in terms of the plaint against all the four Defendants. Then defendants 2 got the decree re -opened but through his default the suit happened to be decreed again. Afterwards the 3rd Defendant came on the scene and he got the ex parte decree as against him \ set aside and the suit restored to the file". It is difficult to understand what the trader reopening the ex parte decree as against Defendant alone and restoring die suit to die file without any qualification meant. Anyhow thereafter trial,, proceeded as if there was no subsisting decree 1 against any one of the Defendants. Against that 'approach the Plaintiff did not demur before the lower Court nor has he taken exception to it in 'the memorandum of appeal to this Court. The lower Court held that as against Defendants 1 to 3 the suit must be treated as having been instituted only on 26 -3 -1119 when die claim had got barred and that as Defendant 4 was a party (Defendant 9) to O.S. No. 70 die suit as against her should be deemed to have been filed well within time, on die date of die pauper application (22 -11 -1110). The suit was therefore dismissed as against Defendants 1 to 3 and a decree given against Defendant 4 for a part of the consideration money, interest thereon and costs. The hypothesis was completely exonerated. Defendant 3 had contended that the consideration for Ext. A was not binding on Defendants 1 to 3, but the Court held that to the extent of 'Rs. 1,075 1/2 the debt was binding on Defendants 1 to 3 also. It is for this
(3.) AT the fag -end of the Appellant's argument before us it was contended that as against Defendants 1, 2, and 4 there was a subsisting decree in terms of the plaint in the suit and die decree now appealed against should be treated as one dismissing the suit against Defendant 3 alone. We have said that no such contention was raised before the lower Court for a ground to .the effect that the lower Court went wrong in dismissing the suit as against Defendants 1, 2 and 4 because of the existence of a prior decree against them taken in the memorandum of appeal. On the other hand complaint is raised in the appeal memorandum on the merits of die case, against the dismissal of die suit as against Defendants 1 to 3 and for not granting a decree against Defendant 4 and her interest in the property for the full claim. We also said that the language of the order re -opening the suit is dubious. We cannot therefore countenance die present contention that the Court went wrong in dismissing the suit as against Defendants 1 and 2 in its entirety and partially as against Defendant 4 because of the existence of a prior decree in the self -same suit. The lower Court's judgment and the memorandum of appeal treat Defendants 1 to 3 alike so far as the dismissal of the suit is concerned. We can therefore deal with the appeal only on the basis that the decree before us in appeal is the only subsisting decree in the suit.;


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