The order on Ext.B2 was obtained under collusion and is a nullity to found a plea of res judicata.

Varghese Kalliath, J.

This case was referred to a Full Bench along with S.A.364/81 by a Division Bench of this Court. The Division Bench thought that the decision in Parameswaran Thampi v. Podiyan Thomas (1984 KLT 397) required reconsideration by a Full Bench. The Full Bench. after hearing S.A.364/81 in extensor. was of the opinion that S.A.364/81 can be disposed of without deciding the correctness of the question of lis pen dens decided in Parameswaran Thampi's case. In considering S.A. 472/81 the Full Bench observed that since the Full Bench has decided not to reconsider the question decided Parameswaran Thampi's case since that question was not arising for the disposal of the case. S.A. 364/81. there is no necessity to dispose of this appeal (SA 472/81) by the Full Bench. It is observed in the order of the Full Bench that the respondent in this appeal contended that the question of lis pen dens does not arise in this case and therefore that question need not be decided in this case by the Full Bench. In view of these circumstances. the Full Bench thought that this case can be decided by a Division Bench of this court. Thus. this case comes up for decision by us. Now. we shall straight away state the relevant facts necessary for the disposal of this appeal.

2. Appellant before us is the first defendant. Suit is one for partition of the half share in the suit property. The property originally belonged to the first defendant and his sister. Beepathtimma. Beepathumma's share was assigned to one Aminumma. the 2nd defendant. under Ext.A3 dt.20-5-1967. Aminumma. the 2nd defendant. entered into an agreement. Ext.A4. with the plaintiff to sell her half share of property and received an advance amount of Rs.1100/-. Ext.A4 is dated 16-5-1969. Plaintiff issued Ext.A7 notice. requesting Aminumma. the 2nd defendant. the performance of the contract of sale after partitioning her share. Ext.AS is the reply by Aminumma. It is dated 17-6-1969. In the reply it is stated that she has asked the 1st defendant for partition of the properly. but the 1st defendant did not comply with that request. It is also stated that she has not entered into any agreement for the sale of the property and that she has not received the advance amount. In substance she says that when it was found difficult to get the property partitioned. she has approached certain persons by name Ravunni Nair and Velayudhan and they promised to mediate the matter. Her case is that she has agreed to abide by their decision and entrusted the assignment deed in her favour executed by Beevathu to the mediators and also entrusted some signed papers. She has indicated that by using the signed papers. the mediators with ulterior motives may have made some agreements to deprive her of the property. In the reply notice it is also stated that the plaintiff in this case has no right to get the sale deed executed in favour of him in regard to her share of the property.

3. The present plaintiff instituted the suit. O.S.364/69. and attached the property. Obviously the attachment was the share of the properly held by Aminumma. Ext.A9 is the judgment in that suit. It is dated 17-3-1971. In the suit no specific performance was allowed. but the court held that the plaintiff in that suit. who is the plaintiff in the suit from which this appeal arises. is entitled to recover the amount of Rs.1.100/- paid as advance from the defendant Aminumma with interest at the rate of 6% per annum from the date of the agreement viz. 16-5-1969. In spite of the decree the amount was not given and so the plaintiff filed an execution petition and brought the property to sale and it was sold on 24-1-1972. Plaintiff purchased the properly and he got the sale certificate Ext.A6. It is dated 13-3-1972. From Ext.A6. it is clear that the property was sold on 24-1-1972. It is also seen from Ext.A6 that this property was under attachment pending the suit. Pursuant to the sale. a sale certificate was obtained and the