Kerala High Court
AS/40/1954 of KARTHIYANI AMMA JANAKI AMMA Vs USANARU MYTHEEN KUNJU on 20 December 1954
Court of Judicature of Travancore-Cochin at Ernakulam Present -X The Hon'ble Justice Shri I. Sankaran and The Hon'ble Justice Shr1 M. S, Menon. A.S. No. 40 of 1954. o.s.No.54/1122 on the file of the Qu1lon District Court. Appellant: (Addl.Defendants 29 & 30). 1. Karth1yayan1 Aroma Jenaki
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-In the High Court of Judicature of TravancoreCochinat Ernakulam Present -X The Hon'ble Justice Shri I. Sankaranand The Hon'ble Justice Shr1 M. S, Menon.
A.S. No. 40 of 1954.
o.s.No.54/1122 on the file of the Qu1lon District Court.
Appellant:(Addl.Defendants 29 & 30).
1. Karth1yayan1 Aroma Jenaki Amme of Mavuvila Veedu, Pupnukkannoo.Cherry, Kottamkara Pakuthy, Quilon.
2. Kunjan Pillai Bhaskaran Pillai of do.
By Advocate Soi General Shr1 Mathew Muricken andAdvocate Shri V.Subramanian Moothathu.
Respondent.(Plaintiff).
-Usanaru Mytheen Kunju of Kottavilathekkekuzhivila Veedu, Pu;nukannoor Cherry, Kottamkara Pakutny.
P~~
By Advocate Shri N.Varadaraja Iyengar.
This appeal having been finally heard on 0l21954 the court on the same day delivered the following
Judgment.
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Defendants 29 and 30 ho are the heirs of the 1st defendant,.--.are the appellants.Plain." tiff's suit ts to be reimbursed ofthe debt due under Ext. decree which was satisfied by the exe-dclcut1on of the sale,Ext.B deeree in favour of defendants 9 to--24 who are the htirs of the decreeholder 1n Ext.A.The properties covered by Sy.Nos.850 and 826 were the items charged underExt.A decree.Of these items the property covered by Sy.No.826was left out from Ext.B sale deed but Sy.No.850 was included inthat sale deed.The result was that Sy.No826 was exoneratedfrom liability under Ext.A decree and the liability was fastened-on Sy.No.850.ibis item along with other properties was purchased by the present plaintiff under Ex,t.c and it was while hewas 1n possession 0f Sy.No.850 that the present appellants tookdelivery of the property on 'Ile strength of Ext.D court sale inO.S.445 of 1107.That court sale was expressly subject to the liability !or the prior charge under Ext.A decree.Blaintiff'spredecessor-in-interest had paid off this charge by the executinnof the sale deed Ext.B and plaintiff has soughtto enforce hisprior clmrge to that extent.Thefirst defendant or hisl.egal.representatives cannot resist thisclaim, because thesale cer-,tificate Ext.D has expressly reserved this prior charge.That-charge could be enforced against both the itemsjointly and severally as per the terms or Ext.A decree.The purchaser underEt.D salecertificate cannot therefore disown liability forthat amount so tar as Sy.No.850 1s concerned..The lower courtwas therefore right in decreeing the claim put forwardonthebasis of Ext.A.The defencecontention was that the liabilitywas only to the extentof 13,300 fanams.The lower court upheldthiscontention and plaintiff was given a decreeonly for thisamount.We see no reason to interfere with that decree.
2. The result 1s thatthisappeal is dismissed with costs.
(Sd) KoSankaran, Joogeo
20th December 1954.
(sa) /t.s.teo«,)«y.(True copy)'
4±.ecivrer,for Registrar.
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