Mahalinga Pathar vs Santhanagopalakrishnan

P.V. Rajamannar, C.J.—All these appeals arise out of proceedings in execution of the decree in O. S. No. 90 of 1950, on the file of the

Subordinate Judge''s Court of Tanjore. That suit was brought on foot of a mortgage executed by one Ramiah Asari on behalf of himself and his

minor son in favour of one Natesa Asari. The suit was actually brought by the executor appointed under the will of Natesa Asari who died before

the suit. Ramiah Asari, the executant, was imploded as the first defendant and his son who was then a minor was impleaded as the second

defendant represented by his mother as guardian.

A separate written statement was filed on his behalf challenging the validity of the mortgage. Two grounds, namely, (1) that the properties

comprised in the mortgage were trust properties of which Ramiah Asari was only a trustee and (2) that even assuming that they were the ancestral

properties of the family, the father, Ramiah Asari, had no power to make the alienation as there was neither any antecedent debt nor legal necessity

to support it were urged. There was also a plea raised that Ramiah Asari was addicted to immoral ways of life and the debts secured by the

mortgage were incurred for such purposes. Several issues were raised, among which were issues relating to the validity of the mortgage and its

binding nature on the second defendant.

When the case came up for trial, a joint endorsement was made on the plaint both on behalf of the plaintiff and the minor son, the second

defendant, in and by which the second defendant was exonerated, and it was agreed that his name may be removed from the record and issues 1

and 2, that is, the issues which related to the validity of the mortgage, need not be considered. The trial of the suit was thereafter confined to the

first defendant and in the result there was a mortgage decree as prayed for against the first defendant only. In execution of this decree the decree-

holder himself purchased the property. He applied for delivery and took delivery of the front portion of the mortgaged property which was a

house; but when he tried to take delivery of the rear portion he was obstructed on behalf of the minor, the second defendant.

Two applications, 178 end 180 of 1953 were filed on his behalf, one to set aside the order of delivery of the front portion and the other for a

declaration that the decree-holder was not entitled to possession of the remaining portion in his occupation. In these petitions the main point raised

was that since he had been exonerated from the decree and his name was directed to be removed, it must. be taken that the mortgage was

deemed to be not binding on his share. It was also pleaded that as the properties covered by the mortgage were trust properties the decree was

not binding on the trust.

The learned Subordinate Judge who heard both these applications together held that there was nothing in the judgment in the mortgage suit to show

that there was any adjudication that the debt was not binding on the minor son and the only remedy which he had was by way of a separate suit

and in this view the learned Judge dismissed both the applications. Against this order the two civil miscellaneous appeals 660 of 1953 and 183 of

1954, were filed which came on for disposal before Krishnaswami Nayudu, J. A preliminary objection was raised on behalf of the decree-holder

respondent that the appeals were incompetent. The objection was overruled.

On the merits the learned Judge agreed with the learned Subordinate Judge that the joint endorsement made by the plaintiff and on behalf of She

minor son, the second defendant, did not have the effect of adjudication as to the question of Validity of the mortgage but he went on to hold that

nevertheless it was open to the son to agitator the question as regards the validity of the mortgage in execution proceedings, though it was not

expressly alleged in his petitions that the suit mortgage as such was not binding on his share. The learned Judge, Krishnaswami Nayudu, J.. thought

it was not a case for shutting out the son from stating his case and he was given permission to file a Supplementary affidavit fully setting out his

case. In the result the orders of the lower court were set aside and the applications were remanded for disposal in the light of the observations

made by him. It is against this order of Krishnaswami Nayudu, J., that the above two Letters Patent appeals have been filed.

Mr. T. S. Kuppuswami Aiyar for the decree-holder appellant once more raised the question of the competency of the appeals to this court, but

we do not think that this objection should be sustained. There is authority of this court that in circumstances such are to be found in this case a

party directed to be removed may nevertheless be deemed to he a party to the suit within the meaning of Section 47, C. P. Code.

Mr. Kuppuswami Aiyar next contended that the only ground on which the applications were filed in the executing court was that the order

passed in pursuance or the joint endorsement amounted to an adjudication in favour of the son that the mortgage was not binding on him and his

share of the family property and once it has been found that that position was untenable, he should not have been given an opportunity to question

the mortgage on other substantial grounds. It is true that expressly nothing was said in the applications concerning the grounds on which the

mortgage was not binding on the contesting respondent; but it is obvious that the alleged adjudication on which reliance was placed was an

adjudication on that very matter, namely, the validity and the binding nature of the mortgage.

Impliedly the contesting respondent must be deemed to have relied upon the ground to set out in his written statement in the original suit, though his

contention that his pleas had been impliedly upheld must fail. In this view the Letters Patent Appeals must be dismissed, but there will be no order

as to costs.

The two applications filed by the son were heard and disposed of by the learned Subordinate Judge of Tanjore. He held that the mortgage was

binding on the son and his share as the bulk of the consideration went for discharge o� antecedent debts. As regards the other objection, the

ground that the mortgaged properties were trust properties, the learned Judge was inclined to hold that they are trust properties though it may he

said that he was not quite sure of his conclusion, He however held that even assuming that the properties were impressed with a trust, it was not

open to the son to raise any objection so long as the first defendant was alive and not removed from the office of trustee. In the end he dismissed

both the applications. The two civil miscellaneous appeals are against the common order disposing of the two applications.

The finding as regards the valid and binding nature of the mortgage is unassailable and indeed no real attempt was made to canvass that finding.

As regards the second objection, however, we are of opinion that it did not fall within the purview of an executing court. If an objection is taken

not as a judgment-debtor but in a different capacity, and a title is set up practically in a third party, though by a judgment-debtor, it is not the

province of an executing court to adjudicate on such claims, Any order passed in execution proceedings would not obviously bind third parties and

if there is a valid trust, the proceedings will not bind even the trustees though they might be parties to the execution in their own private character.

In this view the learned Judge should have refused to go into the question of trust. We therefore set aside the finding of the court below as

regards the nature of the mortgaged properties, though we should not be understood as having disagreed with the learned Judge on the merits. We

set aside the finding only because the finding should not have been rendered by the lower court as an executing court. In this view both the appeals

are dismissed. No order as to costs.