Puthanpeedikayil Enikutty vs M.P. Manakkal Ravi Nambudiripad and Others

Plaintiff has preferred this second appeal against the decree of the lower appellate Court upholding the Defendants'' objection that the suit is not maintainable and accordingly dismissing the suit. Plaintiff''s suit is for enforcing the claim under Ext. A sub-mortgage deed dated 18-3-1094 in respect of the plaint properties which belonged to the Illom of Defendants, 1,2 and 3. Defendant 5 as the manager of the Illom executed a kanom document in respect of these properties in favour of one Kunhikrishnan Nair whose successor-in-interest is the present Defendant 3 Sankaran Nair. In the year 1094 Kunhikrishnan Nair assigned his kanon rights in favour of one Puma Umma and for part of the consideration under that Assignment deed Pooma Umca executed a mortgage in favour of Kunhikrishnan Nair in respect of the kanom right. Kunhikrishnan Nair, in turn executed Ext. A sub-mortgage in favour of one Narayanan Namboodiri of the jenmi''s illom who later on assigned his rights under the sub-mortgage in favour of the present Defendant 4 as per Ext. B dated 1-10-1100. The jenmi instituted O. S. No. 582 of 1106 for recovery of the arrears of jenmi dues in respect of those properties. The kanomdar Pooma Umma and her mortgagee''s successor-in-interest were parties to that suit. Ext. VII is copy of the decree in that case. In execution of that decree the properties were sold and purchased by the decree-holders themselves in satisfaction of the decree-debt. That sale was confirmed on 4-2-1116. Exhibit XI is the sale certificate in that case. The purchasers obtain delivery of the properties on 2-3-1116. Exhibit x is the delivery kychit.

In the meanwhile another suit O. S. No. 199 of 1107 was instituted by the present Defendant 3 and others as the legal representative of Kunhikrishnan Nair, for enforcing the claim under the mortgage which Pooma Umma had executed in his favour. Exhibit 9 is copy of the plaint in that suit. Pooma Umma was the Defendant 1 in that suit and the present Defendant 4 who had obtained an assignment of Ext. A sub-mortgage was Defendant 8. In paragraph 8 of Ext. D plaint it was stated that out of the amount that may be decreed in the case, the amount due to Defendant 8 under Ext. A sub-mortgage may be paid to him in full satisfaction of his claim under the sub-mortgagee. It is common ground that the decree in that case also made provision for thus satisfying the claim under the sub-mortgage. However, when the properties were brought to sale in execution of that decree, the decree-holders themselves purchased the properties in satisfaction of the decree amount without depositing in Court the amount that had been directed to be paid to the sub-mortgagee. Exhibit v is copy of the sale certificate. Defendant 8 sub-mortgagee did not give up the rights which were declared in his favour by the decree in that case. On 4-3-1112 he executed Ext. C assignment in favour of the present Plaintiff by which all his rights and liabilities under the decree were transferred in favour of the Plaintiff. The Plaintiffs as the assignee under Ext. C applied to the execution Court to compel the decree-holder-auction-purchasers to refund to him she amount directed by the decree to be paid in satisfaction of Ext. A sub-mortgage. Such & claim was opposed by the auction-purchasers and the matter was finally set at rest by Ext. Border of the High Court which directed the action purchasers to refund the amount claimed in execution by the present Plaintiff. In paragraph 9 of the present plaint the Plaintiff has admitted that his application for refund of that amount is being pursued by him before the execution Court in O. S. No. 199 of 1107. He has also stated that he has instituted the present suit by way of abundant caution.

The maintainability of the present suit was questioned by Defendants 1, 2 and 5 who contended that the Plaintiff was concluded by the decree and execution proceedings in O. S. No. 199 of 1107, that he is to work out his rights in that case that itself and that he has no right to institute a fresh suit like the present for enforcing the claim under Ext. A sub-mortgage . The trial Court overruled these contentions and gave a decree in favour of the Plaintiff. On appeal by Defendant 5 the lower appellate Court reversed the trial Court''s degree and dismissed the suit. Hence this appeal.

From the facts already stated it is clear that the Plaintiff has no right to maintain the present suit. In the first place, he has to confine himself to the rights obtained by him under Ext. assignment executed in his favour by Defendants in Ext. D case. It is clear from Ext. C that the assignor had submitted to the decree in O. S. No. 199 of 1107 and had accepted the provision made in that decree for satisfying his claim based on Ext. C sub-mortgage and it was Such a right that had been conferred on him by the decree that was assigned by him under Ext. 8 in favour of the present Plaintiff. Part of the consideration for the assignment was reserved with the assignee for discharging the assignor''s liability for the costs which he was directed to pay to the decree-holder in that case. It is also directed in Ext. C that the assignee may realize the amount provided for in the decree by taking out appropriate steps in execution. The Plaintiff as the assignee under Ext. C cannot therefore claim to have obtained the original rights under Ext. A sub-mortgage. Consistent with the decree rights obtained by him under Ext. C he has admittedly applied to the execution Court for payment to him of the amount directed to be paid to his assignor. To Ext. Border of the High Court also the present Plaintiff is a party. By that order his claim to get the amount provided in the decree in O. S. No. 199 of 1107 by applying to the execution Court itself, has been upheld. It is too late now for the Plaintiff to ignore all these proceedings and to contend that the right3 under Ext. A are even now subsisting so as to form the basis of a claim in a fresh suit. The rights under Ext. A sub-mortgage have been adjudicated by the decree in O. S. No. 199 of 1107. The sub-mortgage has acquiesced in. that decree and himself and his assignee the present Plaintiff have deliberately elected to work out their remedies in that suit itself by seeking to enforce the provision made in that decree for satisfying and extinguishing the claim under the sub-mortgage. In view of these facts and circumstances, the lower appellate Court was right in holding that the present suit instituted by the Plaintiff is not maintainable.

In view of the finding recorded above, no other question arises for consideration in this appeal.

Accordingly the decree of the lower appellate Court is confirmed and this second appeal is dismissed with costs.