Keeping at bay the decree holder for 34 years after instituting the suit, efforts are still on to deprive the decree holder of the fruits of his decree.
2. The suit was one for redemption of mortgage. Even prior to the suit, the mortgagee died and in the suit his legal heirs were made the defendants. The mortgagee had left behind his wife and five children. They are all parties to the suit. A preliminary decree was passed followed by the final decree. The mortgagor complied with the terms of the decree and sought delivery of the property. At that point of time, the appellant who is the petitioner before the court below came forward with two petitions, namely, E.A. 861 of 2009 and E.A.1215 of 2007 in E.P. No. 587 of 1995 setting up a case that he had independent rights over the suit property and he was not made a party to the suit and therefore he is not bound by the decree. The other petition was to dismiss the E.P. as ineffective.
3. Both the courts below elaborately considered the claim made by the petitioner that he is not a party to the proceedings and he is not bound by the decree. It was found that Nakulan Achari was in fact a party to the suit and all subsequent proceedings. The decree holder pointed out that Nakulan Achari is also known as Thankappan Achari and taking aid of this aspect, a petition has now been filed to forestall the delivery of the property.
4. It is seen that the petitioner produced a few documents to show that he is known as Thankappan Achari. Based on those documents it is contended that he was not a party to the suit and further proceedings to the suit and therefore he is not bound by the decree. According to him, he is not shown as Nakulan Achari.
5. There is no dispute regarding the fact that Shanmugam Achari who was the original mortgagee had left behind his wife and five children. It is also not in dispute that all the legal heirs were parties to the suit. One of the legal heirs was shown as Nakulan Achari. It is seen from the records that when the summons in the suit was taken out to Nakulan Achari, he refused to receive the same and did not participate in the proceedings. Others contested. At no point of time the defendants had a case that Nakulan Achari who is shown as one of the legal heirs of Shanmugam Achari in fact was not the son of Shanmugam Achari and that he had a son by name Thankappan Achari. Both preliminary and final decree came to be passed with Nakulam Achari on the party array.
6. Execution proceedings were taken with Nakulan Achari on the party array as one of the sons of Shanmugam Achari. The courts below have also noticed that in fact in a Criminal Revision Petition filed by Defendants 2, 4 and 6 before this Court, the second respondent is shown as Nakulan Achari. If Nakulan Achari was not the son of Shammugam Achari and Thankappan Achari was the son of Shanmugam Achari, while filing the revision before this Court, Nakulan Achari would not have been on the party array. It is therefore quite evident that Thankappan Achari is none other than Nakulan Achari
7. Learned counsel for the appellant tried to impress upon this Court that the courts below have misdirected themselves both on facts and in law. On the very face of it, the appellant is not a formal party to any of the proceedings and his independent claim ought to have been considered.
8. The contention of course may look formidable. But on a closer look, it can be found to be without any substance. Nobody has a case including the appellant before this Court that Shanmugam Achari had more than five children. It is an admitted fact that all the legal heirs, the wife and five children of Shanmugam Achari were parties to the suit and further proceedings. It is also interesting to note that at the execution stage some of the defendants who suffered a decree raised kudikidappu right also which was found against. At no point of time there was a contention that Nakulan Achari who is shown in the party array by the plaintiff and the decree holder as the case may be, was not the son of Shanmugam Achari and Shanmugam Achari had a son by name Thankappan Achari. It is therefore clear that the courts below were justified in coming to the conclusion that Thankappan Achari is also known as Nakulan Achari and he was a party to the proceedings.
9. Even assuming that Thankappan Achari is a different person and is the legal heir of Shanmugam Achari, that does not improve the position of the appellant. Admittedly the rights which the appellant could have inherited is only the right which the mortgagee had. His right is similar to the rights inherited by the other legal heirs also. He has no case that his interest was adverse to the interest of other defendants. In fact they enjoyed similar rights. The other legal heirs of Shanmugam Achari had hotly contested and lost. If that be so, the courts below were justified in invoking substantial representation theory also. The courts below were therefore fully justified in declining to grant any relief to the appellant.
This Court finds no grounds to interfere with the finding of the courts below. This appeal is without merits and it is only to be dismissed. I do so.
P. BHAVADASAN, JUDGE sb.