IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 SA.No. 188 of 1997(E) ------------------------------- AS.209/1991 of ADDL.DISTRICT COURT, KOZHIKODE OS.68/1988 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT(S): RESPONDENTS 2 & 8 IN THE LAC AND PLFF. NO.2. ----------------------------------------------------------------------------------------------- 1. MANAKATTU VAKERI MOHAMMED MUSTAFFA HAJI, S/O. SAIDALIKUTTY, BUSINESS, RESIDING AT VALIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 2. MURALIDHARAN RESIDING AT NALLOR DESOM, FEROKE DESOM, KOZHIKODE TALUK. BY SRI.M.C.SEN, SENIOR ADVOCATE BY ADVS. SMT.SHAHNA KARTHIKEYAN SRI.S.PRAKASH SRI.M.P.SREEKRISHNAN RESPONDENT(S): APPELLANT RESPONDENTS 1,3,4, AD DEFENDANTS ------------------------------------------------------------------------------------------------------ *1 KOLANCHERRY VELAYUDHAN, S/O. SANKARANKUTTY, FEROKE AMSOM AND DESOM, KOZHIKODE TALUK.(DIED) *2. THUMPAYIL SURENDRAN, S/O. CHOYIKUTTY PETTITRIDER FEROKE AMSOM NELLOOR DESOM, KOZHIKODE TALUK.(DIED). 3. KALATHINGAL HAMZA, S/O. VEERANKUTTY, MAZDOOR, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. 4. KALATHINGAL SAINA, W/O. KUDUKKAN MOIDEEN, VELIPRAM AMSOM AND DESOM, KOZHIKODE TALUK. tss S.A. NO.188/1997 *5 VAZHIYODAN BALAKRISHNAN, S/O.KUNJAPPA, CONTRACTOR FEROKE AMSOM AND DESOM. * IT IS RECORDED AT THE RISK OF THE APPELLANTS THAT THE IST DEFENDANT (i.e) 5TH RESPONDENT IN THE APPEAL IS DEAD AND THAT NO LEGAL REPRESENTAIVE IS BEING IMPLEADED AS PER ORDER DT. 30.5.2000 ON MEMO C.F. 5236/99. 6. KUDUKKAN MOIDEEN, S/O.KUNJAROO, FURNITURE BUSINESS, FEROKE AMSOM AND DEOM, KOZHIKODE TALUK. 7. NEYYATHOOR VEERANKUTTY, S/O. KUNJARU MAZDOOR, FEROKE AMSOM AND DEOM, KOZHIKODE TALUK. R2 DIED (ADDL. R8 TO R10 IMPLEADED 8. SAVITHRI, D/O. LATE THUMPAYIL SURENDRAN, KALLIKOODAM HOUSE, KALLIKOODAM, FEROKE (P.O.) KOZHIKODE DISTRICT. 9. SARATH T. S/O. LATE THUMPAYIL SURENDRAN, DO. DO. 10. SHIBI T., W/O.SHYJU, PINNANATH, P.O., GOVINDAPURAM. ADDL. RESPONDENTS R8 TO R10 ARE IMPLEADED LR'S OF DECEASED 2ND RESPONDENT AS PER ORDER DTD. 12.10.2009ON IA. 776/07. ADDL. R11 TO R13 IMPLEADED ( R1 DIED) 11. MADHU, S/O. KOLEMCHERY VELAYUDHAN, VIJAYA VIHAR, NEAR POST OFFICE, FEROKE. 12. BABU, S/O. KOLENCHERRY VELAYUDHAN, DO. DO. 13. NAVANEETH, S/O. KOLENCHERRY VELAYUDHAN, DO. DO.DO. ADDL. R11 TO R13 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED IST RESPONDENT AS PER ORDER DT. 16.11.2010 IN IA. 2417/2010. ADV. SRI.P.V.KUNHIKRISHNAN SRI.C.C.ABRAHAM FOR R6 & R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.486/1997 IN SA. NO.188/1997 DISMISSED 22/02/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.188 of 1997-E ------------------------------------- Dated this the 22nd day of February 2011 Judgment The second plaintiff in the suit and respondents 2 to 8 in the first appeal are the appellants before this court. During the pendency of the appeal, the first respondent died and so also the second respondent and their legal representatives have been brought on the party array. The fifth respondent also died during the pendency of the appeal, but no legal representatives have been impleaded. 2. The suit is one for declaration and injunction. The plaintiffs pointed out that they obtained the plaint schedule properties from the defendants. The 2nd defendant, it is stated, obtained a decree against the first defendant as per which the second defendant is to be put in possession of plaint A schedule property. It is stated to be a mortgage decree and the properties cannot be SA 188/97 2 proceeded against in execution. 3. Mainly, two contentions were raised by the plaintiff. The first contention was that there was no equitable mortgage and the second was that the plaintiffs are not bound by the decree as they were not parties to the mortgage suit. 4. The second defendant resisted the suit, pointing out that all the assignments in favour of the plaintiffs are after the creation of the equitable mortgage and therefore, the plaintiffs are not entitled to any reliefs in the suit. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A10 from the side of the plaintiffs. The defendants examined DW1 and no documentary evidence was adduced. 6. The trial court, on a consideration of the evidence, came to the conclusion that since the plaintiffs SA 188/97 3 who have interest in the mortgage had not been made parties to OS No.55/84, which is a suit instituted by the second defendant against the fourth defendant on the basis of an alleged mortgage, the decree is not binding on the plaintiffs and the properties cannot be proceeded with. The suit was accordingly decreed. 7. The second defendant carried the matter in appeal as AS No.209/91 before the District Court, Kozhikode. The lower appellate court found that the trial court erred in decreeing the suit completely and found that Item Nos.3 covered by Ext.A4, tak No.3 of Item No.4 covered by Ext.A8 and tak No.2 in item No.5 covered by Ext.A10 are liable to be proceeded against in execution of the decree in OS No.55/84. The reasoning given by the court below was that the assignments in respect of those items of properties were subsequent to the institution of the suit and therefore, those assignees are bound by the decree. It is the said portion of the decree that is assailed in this second appeal. SA 188/97 4 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the lower appellate court was right in ignoring that all the persons who were interested in the equity of redemption were not made parties to the suit OS 55/84 as per Order 34 Rule 1 CPC. 2.Whether the lower appellate court was correct in granting declaration in respect of part of the property only when declaration was sought for in relation to the entire B schedule properties. 3.Whether the lower appellate court was correct in holding that item No.3, tak 3 of item no.4 and tak 2 of item No.5 do not deserve declaration as decreed by the trial court since their prior document Ext.A6 was executed after 15.2.84 on which day OS 55/84 was filed. 4.Whether the lower appellate court was right in ignoring the fact that Ext.A6 was executed on 26.4.84 which was before passing of the preliminary decree in OS 55/84 on SA 188/97 5 30.08.84 nor taking into consideration that the first defendant and his assignee were entitled to redeem the mortgage at any time before passing of the preliminary decree. 9. After hearing the learned counsel for the appellant, it is felt that all that is required is a slight modification of the decree. On going through the decree passed by the lower appellate court, as far as Item Nos.3 covered by Ext.A4 and tak No.2 in item No.5 covered by Ext.A10 are concerned, no interference need be made since those assignments are made admittedly after the institution of the suit OS 55/84. But, as far as the property covered by Ext.A8 is concerned, the assignor, who is the fourth defendant had obtained it from the third defendant, who, in turn, had obtained it from the first defendant, prior to the suit. Therefore, even if the assignment covered by Ext.A8 is after the filing of OS No.55/84, the assignment in favour of the third defendant was much prior to the suit and therefore, the lower appellate court was wrong in holding SA 188/97 6 that the proceedings could go on in execution of the decree in OS No.55/84 in respect of the property covered by Ext.A8. In the result, this appeal is partly allowed and that portion of the lower appellate court's decree holding that item No.4 covered by Ext.A8 can also be proceeded against in execution of the decree in OS No.55/84, is set aside and that property shall be excluded from being proceeded against in execution of the decree in the above said suit. The second appeal is allowed to the above extent. There will be no order as to costs. P.Bhavadasan, Judge sta SA 188/97 7