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Judgment
Gangadhara Menon, J.—The pltfs. are the applts. The suit was for setting aside the decree & the execution proceedings in O. S. 206 of 1110 & for recovery of possession of the property with mesne profits.
The pltfs. & Deft. 1 are direct brothers. Pltf. 1 is alleged to be of unsound mind & therefore pltf. 2 has brought the suit as his guardian. The father of pltf. 2 & Deft. 1 executed a settlement by which he allotted properties to his children. The plaint property fell to the share of Plaintiff 1. He executed a hypothecation bond in favour of one Kochukoshy Kochukiriyan Vaydian for Rs. 75 on 28-11-1103. Thereafter he left for F.M.S. & is stated to have returned in the year 1112 as an insane man. While pltf. 1 was away in F.M.S. Deft. 1 is alleged to have obtained an assignment of the hypothecation bond & fraudulently obtained a decree in O. S. 206 of 1110. It is also alleged that after the return of pltf. 1, deft. 1 knowing that he was of unsound mind brought the plaint property in Ct. auction without appointing a guardian for him as enjoined under law & purchased the property in auction & obtained delivery through Ct. After delivery Deft. 1 sold the property to Defts. 2 & 3 under, Ex. IX sale deed. The proceedings in execution & the sale are impeached as invalid. Pltfs. therefore seek to set aside the decree & execution proceedings, & recover possession of the plaint property with mesne profits.
Deft, 1 denied the allegation that pltf. 1 was in F. M. S. at the time of the suit & the decree in O. S. 206 of 1110. He contended that pltf. 1 returned from F. M. S. in the year 1108 that he was & continues to be of quite a sound mind & that the decree & execution proceedings & the sale in favour of defts. 2 & 3 are valid. Deft, 2 supported the contentions of Deft. 1. The lower Ct. upheld the contentions of the Defts. & dismissed the suit.
The decree in O. S. 206 of 1110 is impeached on the ground that at the time of the suit & the decree pltf. 1 was in F. M. S. that deft, l who was aware of it gave false address of service & by obtaining a false endorsement deceived the Ct. into the belief that there was proper service of summons & thereby through fraud obtained an ex parte decree. Therefore the first point for determination in this appeal is whether pltf. 1 was in F.M S. at the time when the suit O. S. 206 of 1110 was filed & the decree was obtained. (After discussion of the evidence the judgment proceeds). The oral and the documentary evidence therefore lead us to the conclusion that pltf. 1 was in F. M. S. at the time of the institution of the suit & the passing of the decree in O. S. 206 of 1110 & that he returned from F. M. S. only by the end of 1112 M. E. as stated in the plaint.
It follows that the case of the Defts. that pltf. 1 was residing in Aiyanvila Puthen Veedu, Kadappa Muri as stated in the plaint in Section 206 of 1110 is clearly false, Deft. 1 who is the direct brother of pltf. 1 must have given this false address with the full knowledge that pltf. 1 was away in F. M. S. The summons in the case has been destroyed. Therefore there is no knowing what the endorsement on the summons was. However the circumstances of this case clearly indicate that the service of summons in O. S. 206 of 1110 was effected under a false address of service & an ex parte decree was obtained through the fraud of Deft. 1 who was the pltf. in the case. The decree in O. S. 206 of 1110 & the execution proceedings pursuant thereto are therefore invalid & are liable to be set aside.
Further it is clear from the evidence of pltfs.'' witnesses 1 to 3 that pltf. 1 returned from F. M. S. with some mental derangement though deft. 1 stoutly denies this. When execution was taken out & the property was brought to sale pltf. 2 filed Ex. II, petn. in Court on 17-11-1117 stating that pltf. 1 was of unsound mind & that the sale should be postponed. This petn. was opposed by the decree holder & it appears to have been rejected. When the fact that the judgment debtor was a person under disability was brought to the notice of the Ct. it was the duty of the Ct. to investigate into it & appoint a guardian if as alleged the person was found to be under disability before proceeding with the execution, for, in case of any disability as alleged, the Cts. get jurisdiction to proceed with the execution only after a proper guardian is appointed. This was not done. The sale was held & confirmed & subsequently delivery also appears to have been effected.
Exhibit P dated 12-7-1920 is a certificate of the medical officer in charge of the Colampara Mental Hospital where pltf. 1 was kept under observation. It states that pltf. 1 was then suffering from confusional insanity. It is contended that Ex. P is of no help since the Ct. sale was on 17-11-1117. But pltfs.'' witnesses 1 to 3 clearly swears that pltf. 1 was suffering from mental derangement ever since he returned from F. M. S. We believe their evidence & hold that at the time of the execution proceedings in O. S. 206 of 1110, pltf. 1 was of unsound mind. The execution proceedings conducted without appointing a guardian for pltf. 1 are therefore invalid. The proceedings in execution are liable to be set aside for this reason also. Consequently the sale-deed EX. IX executed by Deft, 1 in favour of Defts. 2 & 3 is also invalid & liable to be set aside.
The learned Munsiff finds that the Defts. are in possession of the plaint property & the masne profits of the property is Rs. 25 per annum. We confirm this finding.
Therefore as prayed for in the amended plaint the decree & execution proceedings in O. S. 206 of 1110 & also Ex. IX sale-deed are set aside & pltf. 2 on behalf of pltf. 1 is allowed to recover possession of the plaint property with mesne profits at the rate of Rs. 25 per annum from Karkadagom 1118.
In reversal of the decree of the Ct. below we allow the appeal with costs in both the Cts. & decree the suit as indicated above. The memoranda of objections filed by the resps. are dismissed with costs.