588 of 1958 was filed against Subramania Pillai directly under the provisions of Order 21 Rule 35 of the Code of Civil Procedure for delivery of possession.
One Swaminatha Pillai was in possession of the property, as a lessee under Parethuammal.
33 of 1966 preferred against the decree of the Court of the District Munsif of Nagercoil in Original Suit No.
315 of 1952, the sublessee, Subramania Pillai was added as a party to the appeal.
Delivery of possession was ordered.
33 of 1966.
Hence the order in Execution Petition No.In this suit the plaintiffs impleaded the original lessee as defendant 2 and the sub lessee, the obstructor, as defendant I but the trial companyrt dismissed the suit.
It appears that on June 20, 1958 Execution Petition No.
605 of 1962.
588 of 1958 having been dismissed, the party number having filed an appeal or suit against that order, it had become final and hence, operates as res judicata.
In this suit the owner Paretliuammal and the lessee Swaminatha Pillai were impleaded as defendants 1 and 2.
In the Second Appeal No.
When the Court Amin went for taking delivery of possession of the property, defendant 3 sub lessee, obstructed the Amin.
588 of 1958 was filed against Subramania Pillai who was number a party to the decree for delivery of possession and it was number heard and decided on merits.
On September 9, 1961 the Executing Court i.e. the District Munsif Court dismissed Execution Petition No.
The High Court allowed the second appeal by order dated October 27, 1975 and held that Execution Petition No.
On September 7, 1960, as the decree was only against defendant 2 the lessee, Execution Petition being No.
315 of 1952 i.e. the second appeal filed by the plaintiffs the decree was modified reducing the interest to 4 and the Second Appeal No.
819 of 1960 under Order 21 Rule 103 of the Code of Civil Procedure Old rule prior to 1976 amendment of Code of Civil Procedure .
As the decree for possession granted to the plaintiffs against defendant 2 only was a companyditional decree, the plaintiffs deposited a sum of Rs 7000.
The suit was companytested by the second defendant lessee.
The sub lessee filed second appeal in the High Court being Second Appeal No.
588 of 1958.
Both the vendor and the sub lessee D 1 and D 3 remained ex parte.
In the said appeal, the companytesting second defendant, the lessee, was only made as a party respondent.
As the possession was number delivered to the plaintiffs, they filed civil suit being O.S. No.
The plaintiff thus again filed the suit out of which the present appeal has arisen, O.S. No.
588 of 1958 operates res judicata and 2 that there was numberfinding that the obstructor was only a sub lessee.
819 of 1960 was filed against him.
The companyrt struck off their names from the array of parties respondents.
The dismissal of the execution petition was number on merit and there was numberinvestigation of the claim of defendant 3.
The plaintiffs preferred an appeal being A.S. No.
588 of 1958 was filed against defendant 3 in the first suit and on the face of it since defendant 3 was number party to the original decree, the application under Order 21 Rule 35 of the Code of Civil Procedure was dismissed on September 24, 1958 solely on the ground that the execution petition was number maintainable against defendant 3 as there was numberdecree against him.
588 of 1958 was accordingly dismissed solely on the ground that the execution petition was number straightaway maintainable against defendant 3 as there was numberdecree for possession against him.
819 of 1960 on the ground 1 that prior order of dismissal in Execution Petition No.
Thus the second appeal filed by the plaintiffs was only against second defendant, lessee Swaminatha Pillai.
315 of 1952 and 345 of 1952 in the High Court of Travancore, Cochin.
2050 of 1972 dated October 27, 1975 whereby the Single Judge set aside the decree of the Court of Subordinate Judge, Nagercoll in Appeal Suit No.
555 of 1946 on the file of the District Munsif Court, Nagercoil, for the recovery of possession after evicting the lessee Swaminatha Pillai.
637 of 1961 filed by the plaintiffs.
An application was then moved under Order 21 Rule 97 of the Code of Civil Procedure to remove the obstruction and delivery of possession.
Execution Petition No.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. This is an appeal by the plaintiffs by special leave against the judgment of the Single Judge of the High Court of Madras passed in Second Appeal No.
On September 24, 1958 Execution Petition No.
2050 of 1972 Nagercoil Town from one Parethuammal under registered sale deed and paid full companysideration.
637 of 1961.
Execution Petition No.
Subramania Pillai was impleaded as defendant 3.
2050 of 1972.
96 of 1965 but it was transferred to the Sub Court, Nagercoil and renumbered as No.
He died during the pendency of the second appeal and, therefore, his sons were brought on record as his legal representatives.
The suit was dismissed on the ground that defendant 2 was number paid the amount spent by him for averting the sale of the property.
The sons filed a petition in the High Court to strike them off from the array of parties as defendant 3 sub lessee was number made a party in the first appeal, A.S. No.
605 of 1962 on the file of the District Munsif Court, Nagercoil for setting aside the order passed in Execution Petition No.
The plaintiffs filed an appeal in the District Court being A.S. No.
The plaintiffs as well as the second defendant preferred separate appeals being S.A. Nos.
According to the plaintiffs, on May 30, 1945 the plaintiffs purchased the suit property i.e. an extent of acres 0 37 cents with a building situated at From the Judgment and Order dated October 27, 1975 of the Madras High Court in Second Appeal No.
345 of 1952 filed by the second defendant was dismissed.
The appeal was allowed and a companyditional decree was passed for possession against the companytesting second defendant.
It was simply dismissed on the ground that the execution did number lie against the third defendant.
During the pendency of the appeal Swaminatha Pillai, lessee, defendant 2 in the suit died and his two sons were brought on record as defendants 7 and 8.
In the memorandum of Second Appeal No.
The companydition was that the plaintiffs should pay Rs 5895 to the second defendant with interest at the rate of 6 per annum.
819 of 1960 was number between the same parties as Execution Petition No.
After the suit was filed, the plaintiffs learnt that Swaminatha Pillai, the lessee, sublet the property to one Subramania Pillai.
Subramania Pillai, defendant 3, the sub lessee, filed an application and raised an objection that as he was number made party to the decree, the decree companyld number be executed against him.
