Decided on October 24,1952

MANI NAICKA Respondents


- (1.) THE plaintiff is the appellant. The facts so far as they are relevant for the purpose of this appeal are these : On 11-8-1933 one Shivakava Patteri, the father of the plaintiff, executed along with four others a promissory note for Rs. 3000 in favour of the Canara Bank. For the balance due on this promissory note the Bank filed O. S. No. 427 of 1934 on the file of the Court of the District Munsif of Kasargod; obtained an 'ex parte' decree for its. 1869-4-10 on 7-9-1934; and realised a sum of Rs. 350 in R. E. P. No. 1564 of 1934. The boobs of the bank show that on 30-7-1935 a sum of Rs. 1637-13-6 being the balance due under the decree on that date was received from Mana Naicka, the first defendant in this suit, Ex. D. 75. On the same day the bank assigned the decree to him. The first defendant brought himself on record as the assignee decree-holder and after several unsuccessful attempts to realise the decree amount in R, E. P. Nos. 1410 of 1936, 584 of 1938, 1186 of 1938 and 172 of 1939 eventually brought the suit properties to sale in R. E. P. No. 401 of 1940 and they were purchased by defendants 2 to 4 in court auction 26-1-1942. An application filed on behalf of the plaintiff who was then a minor represented by his mother as his guardian to set aside the sales under Order 21, Rule 90, C. P. C. , was dismissed as no security was furnished. The sales were duly confirmed and possession taken by the respective purchasers on 29-6-1942, 17-6-1942, and 23-7-1943. Defendants 5 to 7 are purchasers of some of the suit properties from defendants 2 to 4. Order 2-10-1945 the appellant filed O. S. No. 87 of 1945 on the file of the court of the Subordinate Judge, South Kanara, for a declaration that the sales held on 26-1-1942 were illegal and void on various grounds set out in the plaint and for recovery of possession of the properties with mesne profits. It was also alleged in the plaint that the father of the plaintiff had disappeared in 1935 and had not been heard of since, and must be presumed to be dead. The claim was contested by all the defendants. The Subordinate Judge of South Kanara who heard the suit held that the plaintiff had not established any grounds invalidating the sales and dismissed the suit with costs. The present appeal has been preferred against this decision.
(2.) ON behalf of the appellant Mr. K. V. Venkatasubramania Iyer pressed two points: (i) Sivakavu Patteri the father of the plaintiff was only a surety for the other co-executants of the promissory note dated 11-81938 that the payment of Rs. 1637-13-6 to the bank on 30-7-1933 was really made by Sivakavu Patteri, but that he had the decree nominally assigned in the name of the first defendant as to enable him to recover the amounts from the other judgment debtors and that in breach of this arrangement, the first defendant fraudulently executed the decree against the properties of Sivakavu Patteri taking advantage of his disappearance; and that the purchases by defendants 2 to 4 were made in collusion with the first defendant. (2) The execution sale was. fixed for 24-1-1942; it was held not on that date but on 26-11942; there was no order adjourning the sale from 24-1-1942 to 26-11942; there was no further proclamation, and that the sale is therefore a nullity.
(3.) ON the first question the burden is heavily on the plaintiff to establish that the payment of Rs. 1637-13-6 to the bank on 30-7-1935 was really made by his father; that the first defendant was only a benamidar for him; that the execution proceedings taken by the first defendant were fraudulent; and that the purchasers were parties to the fraud,;

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