1. Kuttikrishnan Nair, the appellant in both the cases is the plaintiff in O.S. No. 40 of 1951 and the 3rd defendant-petitioner in Small cause suit No. 367 of 1940 of the District Munsiff's Court of Palghat. A.S. No. 441 is from the decree dismissing O.S. No 40 of 1951 and A.S. No. 414 is from the order dismissing an application to set aside an order in execution of the small cause decree declaring the appellant ex-parte. The two appeals were heard together.

2. The facts necessary for the decision of the two appeals may be briefly stated. The appellant and Defendants 3 to 22 in O. S. No. 40 of 1951 are members of an undivided Marumakkathayam tarwad of which the appellant is the senior most male member. One Padmanabhan Nair, a former karnavan of this tarwad had mortgaged with possession the properties described as items 1 to 16 in the plaint schedule as well as the mortgage right in four other items of immoveable property to one Kesavan Nair for a sum of Rs. 4000. Ext. A2 dated 14-4-1922 is the deed of mortgage The properties were leased back to the tarwad under Ext. A3 of the same date. During the continuance of the mortgage, the mortgage right which the tarwad had in th