Meaning of expression "Representation" u/s 47, Explanation II (b).

G. Maheswaran, J.

1. The defendants are the appellants. The suit out of which this second appeal arises was filed by the respondent-plaintiff for an injunction restraining the defendants from taking delivery of the suit properties by executing the decree in O.S. No. 410 of 1968 on the file of the District Munsif's Court, Sirkali. That suit, O.S. No. 410 of 1968, was instituted by one Venkatesan Pillai, father of defendants, for recovery of possession of suit properties against one Ajeetha Divi, Sheik Dawood and Danapal. The said Danapal is the brother of the respondent in this appeal. Pending trial, Venkatesan Pillai died and the defendants were brought on record. The suit was decreed ex parts in favour of the defendants. The plaintiff-respondent by some arrangement with his brother is in possession of the suit property and has obtained the kudiyiruppu assignment deed evidenced by Exhibit A-1. The defendants objected to this assignment by the Authorised Officer (Kudiyiruppu), Mayuram. In appeal preferred by the second defendant, the order was confirmed by the appellate authority, District Revenue Officer, Thanjavur. The plaint averred that the defendants are trying to execute the decree in O.S. No. 410 of 1968 and he having obtained the Kudiyiruppu assignment cannot be evicted and that the defendants should be restrained by an injunction from taking delivery of the suit property by execution of the decree in O.S. No. 410 of 1968.

2. The suit was resisted by the appellants-defendants who have stated that the plaintiff is not entitled to the benefits of Kudiyiruppu Act, that he is a taxi driver at Madras, and that the Kudiyiruppu assignment deed (oppadai pathiram) is not valid and binding on the defendants.

3. The trial Court found that the plaintiff will be entitled to the benefits of Act 40 of 1971 and that he will be entitled to. a decree for injunction and decreed the suit. In appeal, the judgment of the trial Court was confirmed and the appeal was dismissed.

4. The only substantial question of law formulated by a learned Judge of this Court in the second appeal is "whether the subsequent issue of patta under Act 40 of 1971 would have the effect of nullifying the decree of the Civil Court obtained earlier?". In addition to this point, learned Counsel appearing for the appellants raised another point of law which he has not raised in the courts below, nor in the memorandum of grounds of appeal in this Court, and that is, that Section 47, Civil Procedure Code, is a bar for filing of the suit. These two points of law can be dealt with together.

5. The suit, O.S. No. 410 of 1968 was instituted by Venkatesam Pillai, father of defendants, against three persons, Ajeetha Bivi, Sheik Dawood and Danapal, as is evident from Ex.A-5, copy of the plaint filed in this case. There is no dispute that the suit was decreed ex parte favour of the defendants who have been impleaded in the suit as legal representatives of Venkatesam Pillai, who died pending suit. The respondent was not a party to the suit, O.S. No. 410 of 1968. He has obtained the kudiyiruppu assignment under Exhibit A-1. According to the plaintiff, under the guise of execution of the decree in O.S. No. 410 of 1968, the defendants are trying to take delivery of the suit property for which he has obtained kudiyiruppu assignment under Exhibit A-1. On the other hand, the contention of the appellants is that in order to defeat the decree in O.S. No. 410 of 1968, the plaintiff and his brother colluded together and the plaintiff has obtained assignment in respect of the suit property and that the assignment is not valid. It is not necessary to enter into any discussion whether there was any collusion. It is sufficient to point out that the appellants cannot question the validity of the kudiyiruppu patta any longer as the kudiyiruppu patta was questioned by the second defendant before the Additional Authorised Officer (Kudiyiruppu), Mayuram, by the defendants in C. No. 59 of 1972 evi