Judgment

YOGESHWAR DAYAL, J.- This is an appeal by the plaintiffs by special leave against the judgment of the Single Judge of the High Court of Madras passed in Second Appeal No. 2050 of 1972 dated October 27, 1975 whereby the Single Judge set aside the decree of the Court of Subordinate Judge, Nagercoil in Appeal Suit No. 33 of 1966 preferred against the decree of the Court of the District Munsif of Nagercoil in Original Suit No. 605 of 1962.

2. According to the plaintiffs, on May 30, 1945 the plaintiffs purchased the suit property i.e. an extent of acres 0-37 cents with a building situated at Nagercoil Town from one Parethuammal under registered sale deed and paid full consideration. One Swaminatha Pillai was in possession of the property, as a lessee under Parethuammal. As the possession was not delivered to the plaintiffs, they filed civil suit being O.S. No. 555 of 1946 on the file of the District Munsif Court, Nagercoil, for the recovery of possession after evicting the lessee Swaminatha Pillai. In this suit the owner Parethuammal and the lessee Swaminatha Pillai were impleaded as defendants 1 and 2. After the suit was filed, the plaintiffs learnt that Swaminatha Pillai, the lessee, sublet the property to one Subramania Pillai. Subramania Pillai was impleaded as defendant 3. Both the vendor and the sub-lessee (D- 1 and D-3) remained ex parte. The suit was contested by the second defendant-lessee. The suit was dismissed on the ground that defendant 2 was not paid the amount spent by him for averting the sale of the property.

3. The plaintiffs preferred an appeal being A.S. No. 637 of 1961. In the said appeal, the contesting second defendant, the lessee, was only made as a party-respondent. The appeal was allowed and a conditional decree was passed for possession against the contesting second defendant. The condition was that the plaintiffs should pay Rs 5895 to the second defendant with interest at the rate of 6% per annum.

4. The plaintiffs as well as the second defendant preferred separate appeals being S.A. Nos. 315 of 1952 and 345 of 1952 in the High Court of Travancore, Cochin. In the Second Appeal No. 315 of 1952 i.e. the second appeal filed by the plaintiffs the decree was modified reducing the interest to 4% and the Second Appeal No. 345 of 1952 filed by the second defendant was dismissed.

5. In the memorandum of Second Appeal No. 315 of 1952, the sub-lessee, Subramania Pillai was added as a party to the appeal. He died during the pendency of the second appeal and, therefore, his sons were brought on record as his legal representatives. The sons filed a petition in the High Court to strike them off from the array of parties as defendant 3 (sub-lessee) was not made a party in the first appeal, A.S. No. 637 of 1961 filed by the plaintiffs. The court struck off their names from the array of parties-respondents. Thus the second appeal filed by the plaintiffs was only against second defendant, lessee-Swaminatha Pillai.

6. As the decree for possession granted to the plaintiffs against defendant 2 only was a conditional decree, the plaintiffs deposited a sum of Rs 7000.

7. It appears that on June 20, 1958 Execution Petition No. 588 of 1958 was filed against Subramania Pillai directly under the provisions of Order 21 Rule 35 of the Code of Civil Procedure for delivery of possession. Subramania Pillai, defendant 3, the sub-lessee, filed an application and raised an objection that as he was not made party to the decree, the decree could not be executed against him.

8. On September 24, 1958 Execution Petition No. 588 of 1958 was accordingly dismissed solely on the ground that the execution petition was not straightaway maintainable against defendant 3 as there was no decree for possession against him. The dismissal of the execution petition was not on merit and there was no investigation of the claim of defendant 3.

9. On September 7, 1960, as the decree was only against defendant 2-the lessee, Execution Petition being No. 819 of 19