Judgment

S. RATNAVEL PANDIAN, J.

(1) SPECIAL leave granted.

(2) THE unsuccessful appellants herein have preferred this appeal against the judgment of the High court of Kerala dated 6/08/1986 passed in E.S.A. (Execution Second Appeal) No. 15 of 1979 whereby the High court dismissed the said appeal filed by the appellants. The relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows : Othayoth Gopalan Nambiar (since dead) and Othayoth Lekshmy Amma (who is appellant 1 herein) filed an Execution Application No. , 556 of 1970 in Original Suit No. 817 of 1943 in the court of the Munsiff of Badagara under S. 13-B of the Land Reforms Act, as amended by the Amending Act 35 of 1969 (hereinafter referred to as the Act) for restoration of possession of the properties mentioned in the schedule of the application, which were sold in court auction for arrears of rent in pursuance of the decree made in O.S. No. 817 of 1943. It seems that during the pendency of the proceedings before the Munsiff, Othayoth Gopalan Nambiar died and thereafter appellant 1S son claiming to be the kamavan of the tavazhi got himself impleaded as petitioner 3 in the said execution application, who is figuring as appellant 2 herein.

(3) IN order to decide the question that arise for consideration, certain salient and material facts may be recapitulated. The suit, O.S. No. 817 of 1943 was filed for recovery of arrears of rent of Rs. 815.00 for the Malayalam years 1116 to 1118, corresponding to English era 1941 to 1943. There were 11 defendants to whom Othayoth Gopalan Nambiar and appellant 1 were the defendants 2 and 3. A preliminary decree was passed on 26/05/1944 followed by the final decree on November 29, 1944. The decree-holder assigned the decree to another member of his family, who in turn assigned it to one Kunhikannan. The rights of Kunhikannan devolved on respondents 2 to 4 in the execution application who are respondents 4 to 6 in this appeal and who brought the property to sale. The sale took place on 26/11/1962. One Thekkjayil Kanaran who was respondent 1 in the execution application, i.e. respondent 3 herein purchased the property in the court auction held on 26/11/1962, which sale was confirmed on 14/08/1964 and consequently obtained delivery of the disputed scheduled property extending to 8.70 acres of double crop wet land through court on 9/01/1965 from the possession of the appellants. Ex. C-3 is the delivery account and report submitted by the Amin. The remaining extent of the property Was in the possession of the sub-tenants in respect of which there was resistance with which we are not concerned here.

(4) AFTER the delivery had been effected, Gopalan Nambiar and appellant 1 herein trespassed into the suit property. Therefore, the court auction purchaser filed 0.S. No. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession. The suit was decreed as per the judgment Ex. B-16 dated 27/07/1966. Ex. B-15 is the decree. Ex. B-49 dated 25/08/1966 and Ex. B-50 dated 22/08/1966 are the respective certified copies of the delivery account submitted by the Amin and the delivery warrant issued to Amin in O.S. No. 6 of 1966. The auction purchaser, i.e. respondent 3 in this appeal assigned portions of the property under sale deeds Exs. A-2 and A-3 dated 5/12/1966 to respondents 5 and 6 in the execution application, who are respondents 1 and 2 in this appeal. It is slated that while respondent 1 is stranger, respondent 2 is none other than the wife of respondent 4. As we have pointed out earlier, respondent 4 is among the three respondents on whom the rights of Kunhikannan devolved.

(5) WHILE it is so, Act 9 of 1967 came into force. So Gopalan Nambiar and appellant 1 filed Execution Application No. 1711 of 1967 for restoration of possession under the said amended Act after making the necessary deposit. While this E.A. was pending, Act 35 of 19