Validity of Decree and Execution Proceedings against the illom, Fraudulent and Invalid Execution Proceedings

1. This is an appeal against the judgment and decree of the District Munsiff of Muvattupuzha in O.S. 100 of 1118.

2. The Plaintiffs, two female members of a Namboodiri illom have brought the suit to set aside the decree and execution proceedings in O.S. 265 of 1103 of the Muvattupuzha Munsiff 's Court and to recover possession of the properties sold and delivered over to the 1st defendant in execution of the decree with past and future mesne profits. The plaintiffs alleged that the debt-bond which was the basis of the suit in O.S. 265 of 1103 is not supported by consideration and illom necessity, that the decree was not validly obtained against the illom and that the execution proceedings are fraudulent and invalid. The 1st defendant denied the allegations in the plaint and contended that the decree and execution proceedings are binding on the illom. The trial court held that the debt-bond is supported by consideration and necessity. But it found that the decree in O.S. 265 of 1103 was not validly obtained against the illom and that it is enforcible only against defendants 2 and 3 in that suit and the assets of the deceased Nilacantan Namboodiri. It was held that the proceedings in execution are also invalid. Therefore the learned Munsiff set aside the decree and execution proceedings as against the illom and allowed the plaintiffs to recover possession of the properties on behalf of the illom with past and future mesne profits. The legal representatives of the 1st defendant have preferred this appeal against the above decree. The plaintiffs have filed a memorandum of objections to the findings recorded against them.

3. The learned Advocate for the respondents does not seriously object - and we think rightly - to the findings of the learned Munsiff that the bond which formed the basis of the decree in O.S. 265 of 1103 is supported by consideration and necessity. That finding is therefore confirmed.

4. The next question is whether Ext.1 decree and execution proceedings in O.S. 265 of 1103 are valid and binding on the illom. The learned Munsiff thinks that Ext.1 decree was not validly obtained against the illom for two reasons, viz. (1) that the decree is not obtained against the karnavan of the illom as such and (2) that Raman Aryan Namboodiri who was the karnavan of the illom on the date of the suit died during the pendency of the suit and nobody was brought on record as his legal representative.

5. It is contended that in Ext. X plaint in O.S. 265 of 1103 Raman Aryan Namboodiri was described as engaged in Grihabharanam which meant that he was in management of the illom and that even if this description be deemed to be not sufficient to indicate that the karnavan was sued as such the allegations in the plaint clearly indicated that the karnavan was sued in his representative capacity and that the plaintiffs were seeking to get a decree against the assets of the illom. Therefore it is argued that in any event there was substantial compliance with the provisions of law. Assuming that this position taken up by the appellants is correct, still as pointed out by the learned Munsiff Raman Aryan Namboodiri who was admittedly the karnavan of the illom died during the pendency of the suit and nobody appears to have been brought on record as his legal representative. Ext. K death register shows that Raman Aryan Namboodiri died on 11.6.1103. The decree in the case was passed on 22.8.1103 long after the death of the 1st defendant. Even taking it that the first defendant was impleaded in the suit as karnavan of the illom nobody was brought on record as karnavan after his death. We think that this defect is fatal to the validity of the decree against the illom. It is argued that the next senior in age who under law became the karnavan after the death of the 1st defendant was already on the party array though not as such that the defect if at all in not bringing him on record as the karnavan was only an irregularity and not an illega