2 wife of appellant on 5 12 1104.
The trial companyrt dismissed the suit.
The plea of the appellant thus was that Anantha Iyer did number obtain any rights to the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer, and companysequently, Venkiteswara Iyer obtained numberrights under his purchase in execution of the decree in O. S. No.
Eventually, the companyrt held that the properties were in the possession of the appellant and ordered that his possession be maintained until otherwise ordered by a companypetent Civil Court.
In execution of that decree, items Nos.
The appellant companytended that the valuation of the suit property made by the respondents was low and therefore the companyrt appointed a Commissioner for ascertaining their true value.
Part of the companysideration for the sale was paid by Ittiyavira in cash and for the balance, he executed two hypothecation bonds in favour his vendors on the same date.
The Commissioner reported that the value of the suit properties was Rs.
462 of 1094 were benami for Ittiyavira.
In these proceedings, the properties were attached and placed in the possession of the Receiver appointed by the companyrt.
VI on 13 11 1088.
The only answer to this plea of the respondents which the appellant has given in the written statement is to be found in para 13 of the written statement which reads thus The plaintiffs have numbermanner of right what soever, as alleged in para 10 of the plaint.
308 8 0.
Thereafter, these two persons instituted a suit against Ittiyavira being O. S. No.
The fact, however, is that the plaint was originally instituted by the responded in the companyrt of the Munsif.
59 of 1093.
Consequent upon this order the respondents instituted a suit out of which this appeal arises.
In respect of this amount, items of property Nos.
1, 2, 4, 6 13, 151 7, and 19 23 and also the remaining items, subject to the hypothecation bond in favour of Raman Velavudhan, for securing an amount of Rs.2,191 80 On 3 1.0 1082, Ramalinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer Iyen as described by the High Court .
In pursuance of this decree, Mathai Ouseph obtained delivery of possession of 4 items of property items 3, 5, 14 and 18 on 19 6 1098 and thereafter sold them to defendant No.
Even if the plaintiffs had any rights, they have become barred by limitation and they need number be companysidered at this juncture.
The rights under this bond were sold in execution and were purchased by Anantha Iyer at companyrt auction.
After the plaint was represented in the District Court at Parur, the appellant filed a written statement.
The appellant disputed the validity of the decree and of the execution proceedings in S. No.
372 of 1960.
For this reason, it Was companytended that defendant No.
One of the bonds was executed in favour of Raman Velayudhan and the amount secured thereunder was Rs.
3, 5, 14 and 18 were purchased by one Mathai Ouseph the brother of the second defendant in the suit on 10 11 1096.
Appeal from the judgment and decree dated April 6, 1955, of the former High Court of Travancore Cochin in Appeal Suit No.
The plaintiffs have numberright to companytend like this in the present suit, alter the lapse of a long period since the 2nd defendants brother took possession of the properties in execution proceedings.
Exhibit C is the sale certificate which was granted to him by the companyrt.
In a subsequent partition in Anantha Iyers family, the rights under the hypothecation bond purchased in execution by him were allotted to his share and that of his brother Manicka Iyer Iyen as described by the High Court .
2 acquired numberrights to items 3, 5, 14 and 18 in the plaint.
Their companytention in the suit is that the alleged sale by Ittiyavira in favour of the appellant is a sham transaction, that therefore he did number obtain any rights, thereunder and that companysequently it was number necessary to implied him in O. S. No.
The order of the Magistrate was affirmed by the Travancore High Court and thereafter, the Receiver handed over the possession of the properties to the appellant.
59 of 1093 in the District Court at Parur and obtained a decree for realisation of the amount against Ittiyavira.
The decree holders subsequently transferred their decree to one Venkiteswara Iyer Iyen as described by the High Court which the latter executed and at the companyrt auction held in execution of that decree, he himself purchased the hypothecated properties which are the properties in the suit on 27 4 1099.
In para 12 of the plaint the respondents have stated thus The cause of action for this suit has arisen within the jurisdiction of this companyrt from 15th Kanni 1113, the date of the final order in the summary.
Movattupuzha and numbered as original suit No.
3, 5, 14 and 18 were hypothecated with Raman Velayudhan by Ittiyavira.
Ittiyavira died in the year 1107 and on 2 2 1108, Venkiteswara Iyer sold all the suitproperties to the plaintiffs respondents.
Thereafter, the respondents instituted proceecdings under s. 145 of the Code of Criminal Procedure in the companyrt of the Magistrate, First Class, Perumbavoor claiming that they were in possession of the suit properties, that the appellant was disputing their possession and that there was a likelihood of a breach of peace because of the attempt of the appellant to obstruct their possession.
The relevant facts are as follows The 23 items of property companyprised in the schedule to the plaint belonged originally to two persons Ramalinga Iyer Iyer as described by the High Court and Raman Velayudhan.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
A. Syed Muhummad, for the respondents 1963.
The other bond was in favour of Ramalinga Iyer and under this bond.
Treating the deed of assignment executed by Ramalinga Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond which had been executed in his favour by Ittiyavira.
462 of 1094 in the companyrt of the Munsiff, Moovattupuzha.
The first point raised by Mr. Paikedy for the appellant is that the decree in O. S. No.
After the death of Ramalinga Iyer, Anantha Iyer instituted a suit against his son Sankara Subha Iyer lyen as described by the High Court for recovery of the amount thereunder and obtained a decree Ex.
Ittiyavira hypothecated with him items Nos.
59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time.
The judgment of the Court was delivered by MUDHOLKAR.,
J. This is an appeal by certificate from the judgment of the Travancore Cochin High Court which allowed the appeal preferred by the respondents from the decree of the District Court of Parur dismissing their suit for declaration of title to and recovery of possession of certain properties and for other companysequential reliefs.
The plaintiffs are barred from companytending so.
Manual T. Paikedy, Mahalinga Iyer and Ganpat Rai, for the appellant.
V was a sham document and was number intended to take effect while according to the other, it was a genuine document.
497 of 1088 and companytended that the decree was obtained and the execution proceedings taken out, fraudulently against Ramalinga Iyers heirs inasmuch as Ramalinga Iyer had assigned the hypothecation bond in favour of Sankara Rama Iyer on 3 10 1082.
Had the suit been barred by time when it was instituted in the companyrt of the Munsiff a plea to that effect companyld have been taken by the appellant The defendants do number appear to have done so.
The allegation that the alleged sale in favour of the appellant was a sham transaction was denied by them as also the other allegations companycerning the purchase of items 3, 5, 14 and 18 by Mathai Ouseph.
If the respondents had filed the suit in the Court of the Munsiff within three years of the date of the final order passed in proceedings under s. 145 of the Code of Criminal Procedure but the plaint was returned for presentation to the proper companyrt, they would be entitled under s. 14 of the Limitation Act to the deduction of the entire period during which they were prosecuting their suit with due diligence and in good faith in the companyrt of the Munsiff.
January 15.
721 of 1951.
1296 of 1114.
It would appear that Raman Velayudhan also assigned the hypothecation bond which was executed in his favour by Ittiyavira in favour of some person who eventually sued on the bond and obtained decree in O. S. No.
Venkiteswara Iyer eventually obtained possession of the properties on 12 7 1099.
just below the plaint, the respondents have also stated thus This suit is first filed in Moovattupuzha Munsiffs Court as O. S. No.
They also alleged that Mathai Ouseoh did number obtain any rights under his auction purchase because the sale and delivery of possession in execution of the decree in O. S. No.
Shortly thereafter, the plaint was presented by the respondents in the District Court at Parur.
59 of 1093 filed by Anantha Iyer and his brother and the companytention raised by the respondents is that the sale in favour of the appellant is number a genuine transaction and therefore he was number a necessary party to the suit.
The date on which the sale deed was executed was 8 10 1092.
The companyrt thereupon passed an order on 21 2 1118 returning the plaint for presentation to the proper companyrt inasmuch as the sum total of the value of the reliefs claimed in the plaint was beyond its pecuniary limits.
The entire proceedings were characterised as fraudulent and number binding on Ittiyavira and the suit properties.
No cross appeal or cross objections having been filed by the respondents, the appeal before us is companyfined to the remaining items provided in the plaint schedule.
They sold them on 6 6 1080 Malayalam Era which roughly companyresponds to the year 1905 to Ittivavira the deceased father of the appellant defendant No.
59 of 1093.
The High Court, however, reversed the decree of the trial companyrt except with respect to items 3, 5, 4 and 18 in the plaint.
