Decided on January 19,1955

JANAKI Respondents


- (1.) The 1st defendant is the appellant. The plaintiff is the wife of the 2nd defendant. They had executed a promissory note in favour of the 1st defendant. For the amount due thereunder he filed case No. 157 of 1109 in the Village Panchayat Court, Attingal and obtained a decree. The decree was got transferred to the Munsiffs Court, Attingal where the plaint property was proceeded against for the realisation of the amount. It was described that the property belonged to the 1st defendant in that case. The property was sold and purchased by the decree holder. The plaintiff then intervened in and stated that though the property originally belonged to the 1st defendant he had executed a mortgage in her favour on 22.10.1107, that she had constructed a building described as item 2 in the plaint with her own funds, that she was in possession of the property and the building and that the auction purchaser was not entitled to get delivery of possession. This petition was enquired into and dismissed. An appeal CMA 33 of 1116 filed against that order was also dismissed by the District Court. The plaintiff has now brought the present suit for a declaration that the orders passed by the execution court and the appellate court were invalid and liable to be set aside and that the plaintiffs title and possession of the property should be declared.
(2.) The 1st defendant contended that the suit was not maintainable, that it was barred by res judicata by virtue of the proceedings before the execution court and the appellate court, that the present plaintiff was the 2nd defendant in that case, that the mortgage deed of 1107 was benami and in fraud of the creditors of the 2nd defendant and not supported by consideration, that the plaintiff derived no title or possession under it, that the 2nd defendant had himself constructed the building with his money and rented it out and that the execution proceedings were not liable to be set aside.
(3.) The courts below found that the present suit was maintainable, that it was not barred by res judicata by the orders of the execution court and the appellate court, that the attachment effected in execution of that decree would only be subject to the mortgage right of the plaintiff, that the mortgage deed was valid and operative and that the plaintiff was entitled to a decree as prayed for.;

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