JUDGMENT :

(Prayer: This Memorandum of Second Appeal is filed under Section 100 of Code of Civil Procedure, against the Judgment and decree dated 24.10.2009 made in A.S.No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram, reversing the judgment and decree dated 08.01.2008 made in O.S.No.200 of 2006 on the file of the learned Principal District Munsif, Thirukoilur.)

1. The present Second Appeal is directed against the Judgment and decree dated 24.10.2009 made in A.S.No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram, reversing the judgment and decree dated 08.01.2008 made in O.S.No.200 of 2006 on the file of the learned Principal District Munsif, Thirukoilur.

2. The 1st defendant in O.S.No.200 of 2006, on the file of the learned Principal District Munsif, Thirukoilur, is the appellant herein. Before the trial Court, the respondents 1 and 2 herein, filed the above referred suit as against the appellant and other respondents, seeking the relief of direction, directing the defendants to pay a sum of Rs.50,056/-, along with interest at the rate of 12% per annum to the plaintiffs and for costs.

3. After elaborate trial, the learned Principal District Munsif, Thirukoilur, by judgment and decree dated 08.01.2008, dismissed the suit with costs.

4. Challenging the same, the plaintiffs/respondents 1 and 2 herein preferred an appeal in A.S. No.102 of 2008 on the file of the learned Principal Subordinate Judge, Villupuram, praying to set aside the judgment and decree dated 08.01.2008, passed by the learned Principal District Munsif, Thirukoilur.

5. The learned Principal Subordinate Judge, Villupuram, by judgment and decree dated 24.10.2008 allowed the appeal and set aside the findings arrived at by the trial Court. Ultimately, the suit was decreed, as prayed for. Being dissatisfied with the same, the 1st defendant is before this Court with the present Second Appeal.

6. For the sake of convenience hereinafter the parties are referred to as per their litigative status before the trial Court.

7. The laconic averments made in the plaint, are as follows:

(i) Originally the suit schedule property belongs to one Sevi Gounder, who is the father of the defendants. After the demise of Sevi Gounder, on 13.12.1982, the defendants 1 to 6 along with their mother Ammaniammal, sold the suit property to the 1st plaintiff for Rs.9,500/-. After the same, the mother of the defendants viz., Ammaniammal passed away. In the sale deed dated 13.12.1982, it was mentioned that the defendants 1 to 6 received Rs.9,500/- for discharging the mortgage loan given by the 7th defendant. Further, the defendants 1 to 6 have assured to clear the encumbrance, if any, found in future.

(ii) As per the assurance given by the defendants 1 to 6, they have not discharged the loan availed from the 7th defendant. Hence, the 7th defendant filed a mortgage suit pertains to the suit property in O.S.No.52 of 1996, before the competent Court and obtained a decree. After knowing the fact that the decree has been passed, the plaintiff/7th defendant herein approached the defendants for settling the issue. However, during the time of auction conducted by the Court, after made conspiracy, the 8th defendant, who is the son of the 3rd defendant participated in the auction and purchased the suit schedule property in the auction.

(iii) Thereafter, the plaintiffs deposited the decree amount and set aside the sale conducted by the Court. Therefore, the defendants are liable to pay the suit amount to the plaintiffs. Hence the suit.

8. The case of the defendants, as averred in the written statement, is as follows:

(i) The 7th defendant Jayanthi Ammal, is the daughter of Sundaram Chettiyar, who is doing ‘money borrowing and lending business’ (“TAMIL”). The defendants 1 to 6 ultimately, were having the loan transaction with the said Sundaram Chettiyar. In this regard. On 24.02.1965, a mortgage deed was executed between the father of the defendants 1 to 6 Se