S.S. Satheesachandran, J. The appellants are defendants 5, 7, 8 and some among the legal representatives of the 6th defendant, in O.S.No.229/93 on the file of the Principal Sub Court, Kochi. Respondents 1 to 8 are the legal representatives of the plaintiff viz., P.K. Aboo. 9th respondent is the 1st defendant in the above suit and respondents 10 to 12 are defendants 2 to 4 in the suit. Respondents 10 and 12 passed away during the pendency of the appeal and their legal representatives have been impleaded as respondents 19 to 23 and 24 to 27 respectively. Respondents 13 to 18 are the other legal representatives of the 6th respondent in the suit.

2. The appeal is directed against the decree granted by the court below setting aside the court sale in O.S.No.67/81 of the Principal Sub Court, Kochi, and directing re-delivery of some of the properties covered by that sale, four items described as B schedule in the present suit.

3. Short facts involved in the case necessary for disposal of the appeal can be summed up thus: The 1st defendant, a statutory bank, instituted O.S.No.67/81 against defendants 2 to 4 for recovery of the loan advanced to the 2nd defendant on the basis of mortgage of the properties of defendants 3 and 4, by sale of the properties. 12 items were included in the above suit as the mortgaged properties. Items 1 to 4 in O.S.No.67/81 are the B schedule properties in the present suit, O.S.No.229/93. Plaint A schedule properties in the suit are items 5 to 12 in O.S.No.67/81. Before institution of the above suit by the bank but long after the mortgage over item Nos.1 to 12 in its favour, another creditor of the 2nd defendant, M/s. Mettur Beard Sell Limited had instituted a suit, O.S.No.102/76 against the 2nd defendant. In the decree passed in that suit, B schedule properties in the present suit (items 1 to 4 in O.S.No.67/81) were brought to sale, and the present plaintiff, Sri. P.K. Aboo as the highest bidder in the auction purchased them. Those properties were later delivered over to him through court. Meanwhile, the suit, O.S.No.67/81 filed by the 1st defendant bank on 15.4.1981 was decreed. When the decree holder/1st defendant bank in the present suit moved for execution of the decree by sale of the mortgaged properties, the plaintiff had resisted the sale over B schedule, (items 1 to 4 in O.S.No.67/81). His challenges being negatived, the sale proceeded in which 'B' schedule properties were purchased by defendants 5 to 8. Though the plaintiff had challenged the delivery of B schedule properties to defendants 5 to 8, on various grounds, such attempts were unsuccessful. The plaintiff thereafter filed the present suit O.S.No.229/93 for a declaration that the court sale of the properties in O.S.No67/81 is illegal and vitiated by fraud and irregularity in the publishing and conducting of the sale, and, thus, liable to be set aside, and for a permanent prohibitory injunction to restrain the defendants from alienating or creating any charge over B schedule properties. A decree for re-delivery of B schedule was also sought for.

4. Among the defendants, the 1st defendant bank, 4th defendant, 5th defendant, and defendants 6 to 8 together, and 7th defendant separately, filed written statements, among whom, the 4th defendant supported the case of the plaintiff that the court sale is vitiated by fraud, and others resisted the claims canvassed raising manifold contentions in which the maintainability of the suit was also challenged in view of the orders passed by the execution court in O.S.No.67/81. The present suit is barred by res judicata was one among the contentions raised by the 1st defendant. Sale over B schedule items on the basis of the decree in O.S.No.102/76 by which the plaintiff claimed right over those properties as the auction purchaser, who had obtained delivery of such properties in such sale, was also impeached by the 1st defendant contending that B schedule properties were subject to the mortgage create