Judgment :- 1. These appeals arise out of two connected suits, O.S. Nos. 586 of 1946 and 174 of 1945 of the Principal District Munsiff's Court of Tirur The two suits, O. S.174 of 1945 and 586 of 1946, were tried and disposed of together by the learned District Munsiff; and against the Munsiff's decrees in the two suits there were three appeals in the court of the Subordinate Judge of South Malabar at Kozhikode, A.S. Nos. 29, 35 and 36 of 1949. The learned Subordinate Judge dismissed all the three appeals. Against the appellate decrees three second appeals were filed in the Madras High Court, namely, S.A. Nos. 716 of 1952,1588 of 1952 and 1589 of 1952. The first of these second appeals, S. A. No. 716 of 1952, was heard and dismissed by Krishnaswamy Naidu, J., of the Madras High Court on 15 121955; and the remaining two, namely, S. A. Nos. 1588 and 1589 of 1952, have been transferred to this court after the formation of the Kerala State. Both these second appeals, Nos. 1588 and 1589 of 1952, have been filed by the same person. He was the plaintiff in O. S. No. 586 of 1946 out of which has arisen S. A. No. 1588 of 1952, and defendant 33 in O. S.174 of 1945 which has given rise to S. A. No. 1589 of 1952. 2. O.S. No. 174 of 1945 was filed by some junior members of a marumakkathayam tarwad, the karnavan of which was one Govinda Menon, defendant 7 in the suit. The prior karnavan of the tarwad, Unnikanna Menon, had executed two bundles for Rs. 2.000/ in favour of Mamutty, the predecessor-in-interest of defendants 1 to 3 and 32. Mamutty endorsed these hundies in favour of the Kerala Central Bank as additional security for amounts borrowed by him under a mortgage deed, and for amounts due to them as per the mortgage and the security deeds the said bank obtained a decree in O.S. No. 75 of 1927 of the Calicut Sub-Court against Mamutty and Unnikanna Menon's tarwad. It was provided in that decree that Unnikanna Menon's tarwad was to be liable for Rs. It was provided in that decree that Unnikanna Menon's tarwad was to be liable for Rs. 2,441-4-0 out of the decree amount, the said amount being the principal and interest under the two hundies, and that if the tarwad discharged this liability the immovable properties mortgaged by Mamutty would be liable only for the balance decree debt. In the event of the failure of Unnikanna Menon's tarwad to discharge its liability the immovable properties mortgaged by Mamutty were made liable for the entire decree amount. Subsequently, the Kerala Central Bank assigned the decree to the Yogakshema Bank, and since neither Mamutty nor Unnikanna Menon's tarwad paid the decree amount the Yogakshema Bank caused Mamutty's properties to be sold and realised the entire decree amount from them. Then Mamutty made an application to the Calicut Sub-Court, E. A. No. 762 of 1943, in O. S. No. 75 of 1927 alleging that he was entitled to execute the decree in the said case against Unnikanna Menon's tarwad and realise from it the amount decreed against the tarwad as per the two hundies since the tarwad had not discharged its liability under the decree, and praying that the decree might be sent to the Tirur Munsiff's court for execution. At the time of this application Unnikanna Menon was dead and defendant 7, Govinda Menon, was the karnavan of the tarwad. After notice of the application to Govinda Menon, E. A. No. 762 of 1943 was allowed & the decree sent to the Tirur Munsiff's Court. Mamutty then filed E. P. No. 319 of 1944 in the Tirur Munsiff's court, and after impleading Govinda Menon as an additional defendant to represent his tarwad he executed the decree and caused-some of the properties belonging to the tarwad to be sold in execution and realised the amount due to him. At the execution sale different persons purchased different items of properties. Mamutty himself was the auction-purchaser of some of the properties, and the other auction-purchasers were defendants 4,5 and 6 in O. S. No. 174 of 1945. 3. At the execution sale different persons purchased different items of properties. Mamutty himself was the auction-purchaser of some of the properties, and the other auction-purchasers were defendants 4,5 and 6 in O. S. No. 174 of 1945. 3. The suit, O.S. No.174 of 1945, was brought by some junior members of the tarwad of Unnikanna Menon and Govinda Menon for cancellation of the execution sale in O. S. No. 75 of 1927 conducted at Mamutty's instance and recovery of possession of the properties sold thereat, on the allegations that there was no decree in O. S. No. 75 of 1927 which could be executed against their tarwad by Mamutty, that the execution sale as per E. P. No. 319 of 1944 in O.S. No. 75 of 1927 was null and void as the decree had already been executed and the decree amount realised by the Yogakshema Bank and also because execution had become barred on the date of Mamutty's application, E. A. No. 762 of 1943, and that the execution proceedings were not also binding on their tarwad as they were conducted without proper notice. The properties sold in execution as per E. P. No. 319 of 1944 are the suit properties in O. S. No. 174 of 1945. 4. Subsequent to the execution sale in pursuance of E.P. No.319 of 1944 the appellant in the present second appeals, Pareekutty Haji, caused one of the items sold in pursuance of E. P. No. 319 of 1944 to be sold in execution of the decree in O. S. No. 388 of 1939 of the Tirur Munsiff's court, which he had obtained against the tarwad of Unnikanna Menon and Govinda Menon, and purchased the same himself subject to a mortgage for Rs. 1,500/- which the said tarwad had executed in favour of one Mullappally Nambudiri. Treating the execution sale in O. S. No. 75 of 1927 as per E.P. No. 319 of 1944 as null and void and not binding on him or affecting his rights as per the execution sale in 0. S. No. 388 of 1939 the present appellant instituted S. S. No. 586 of 1946 for redemption of the mortgage executed by Unnikanna Menon's tarwad in favour of Mullappally Nampudiri and for recovery of possession of the property. S. No. 388 of 1939 the present appellant instituted S. S. No. 586 of 1946 for redemption of the mortgage executed by Unnikanna Menon's tarwad in favour of Mullappally Nampudiri and for recovery of possession of the property. Because he was claiming title to one of the suit properties in O. S. No. 174 of 1945 as per the execution sale in O. S. No. 388 of 1939 the present appellant was also impleaded as defendant 33 in O. S. No. 174 of 1945. In both O.S. No. 174 of 1945 and O.S. No. 586 of 1946 he supported the contentions, of the plaintiffs in O. S. No. 174 of 1945 that the execution sale in pursuance of E. P. No. 319 of 1944 was null and void and not binding on Unnikanna Menon's tarwad. 5. The auction-purchasers at the execution sale as per E.P. No. 319 of 1944 and such of the defendants in the two suits as claimed under those auction-purchasers contested the suits. Their contentions were that Mamutty was entitled to execute the decree in 0. S. No. 75 of 1927 against Unnikanna Menon's tarwad and realise the hundi amounts, that execution was not barred by limitation at the time of E. A. No. 762 of 1943, that the execution proceedings were not null and void and were binding on Unnikanna Menon's tarwad, that the representative of the tarwad had been duly impleaded in execution and the tarwad had due notice of the execution proceedings, that the suits were barred by resjudicata on account of the orders in the execution proceedings in O.S. No. 75 of 1927, and that the suits were not therefore maintainable. 6. The trial court dismissed the suits upholding the contentions of the auction-purchasers and their representatives that the representative of the tarwad had been duly impleaded in execution and the tarwad had due notice of the execution application and that the suits were therefore barred by resjudicata on account of the orders in the execution proceedings in O. S. No. 75 of 1927. Against the decree in O.S. No. 174 of 1945 the plaintiffs in that suit as well as the present appellant filed two appeals and against the decree in O. S. No. 586 of 1946 the present appellant filed an appeal. These appeals were ultimately heard by the Subordinate Judge of South Malabar sitting at Kozhikode. Against the decree in O.S. No. 174 of 1945 the plaintiffs in that suit as well as the present appellant filed two appeals and against the decree in O. S. No. 586 of 1946 the present appellant filed an appeal. These appeals were ultimately heard by the Subordinate Judge of South Malabar sitting at Kozhikode. A.S. No. 29 of 1949 was the appeal which the present appellant filed against the decree in O. S. No. 586 of 1946 and A. S. No. 35 of 1949 of the Sub-Court was the appeal which the present appellant filed against the decree in O. S. No. 174 of 1945. The appeal which the plaintiffs in O.S. No. 174 of 1945 filed against the decree in that case was A. S. No. 36 of 1949. As has been stated already the Subordinate Judge also dismissed the three appeals confirming the trial court's decrees in the two suits. 7. From the decree in A. S. No. 36 of 1949 filed by them against the decree in O.S. No. 174 of 1945 the plaintiffs in that suit filed S. A. No. 716 of 1952 which was dismissed by Krishnaswamy Naidu, J., on 15-12-1955 as stated already. The two second appeals transferred to this court and which are being disposed of by this judgment are the second appeals filed by the appellant, Pareekutty Haji, one against the decree in O. S. No. 586 of 1946, i, e., S. A. No. 1588 of 1952 and the other against the decree in O.S. No. 174 of 1945 i.e., S.A. No. 1589 of 1952. 8. Both the courts below have concurrently found that Unnikanna Menon's tarwad had notice both of E. A. No. 762 of 1943 and E. P. No. 319 of 1944 in O.S. No. 75 of 1927. No doubt, Govinda Menon had not personally accepted the notice issued to him in regard to the said applications and service of the notice was effected by affixture at his residence. But the findings of the courts below are that this service was proper and that the notices were affixed because he had refused to accept the same. Confronted with this concurrent finding that there was proper service of notice on Govinda Menon the appellant contends that Govinda Menon had not the capacity to represent the tarwad when notice was issued to him in respect of these applications. Confronted with this concurrent finding that there was proper service of notice on Govinda Menon the appellant contends that Govinda Menon had not the capacity to represent the tarwad when notice was issued to him in respect of these applications. The contention is that, as a suit for partition had been filed by some of the members of Unnikanna Menon's tarwad in 1943, the joint status of the members of the tarwad must be deemed to have become severed on the date of the plaint in that suit, 4-6-1943, or at least on the date of the preliminary decree therein, namely, 7-10-1944, and that the notices issued to Govinda Menon alone were not therefore sufficient to bind the other members of the tarwad. No doubt, the notices to Govinda Menon were issued after the institution of the partition suit, but they were issued and the properties were also attached before the date of the preliminary decree. Even at the time of the auction sale and at the time i of the delivery of the properties in pursuance of the auction sale the final decree in the partition suit had not been passed. No receiver had also been appointed i for the properties in the partition suit. This was not therefore a case in which there was a full and complete partition at the time of the execution proceedings or one in which the karanavan's right to manage the properties till the time of a full and complete partition had been terminated by the court. As such, the karnavan was fully competent to represent the tarwad in the execution proceedings. Although this question has not specifically come up for decision in any of the cases brought to our notice, the following observations in Appu Atiyoti v. Krishnan Nambiar, 1958 KL.J. 396, are very pertinent: "At the time of the separation of interest in this case also there was no actual division of the properties and some one had to be in possession of, and manage, the properties until they were actually divided and each sharer was given actual possession of his share. In those circumstances, it was only natural and proper for the karnavan to continue to be in possession of the properties and manage them until actual division by metes and bounds." A karanavan continuing to be in possession and management of the tarwad properties pending a suit for partition in which no order has been passed to dispossess him of the management is, in our opinion, competent to represent the entire tarwad in the execution proceedings against it, and the proceeding with notice to him would be binding on all the members of the tarwad so long as no case of fraud or collusion has been made out. In this view, the orders in the execution proceedings in O. S. No. 75 of 1927, allowing execution to proceed against the tarwad and directing the sale of the tarwad properties and confirming the said sale, would operate as res judicata in respect of the appellant's contentions in the two suits. The courts below were therefore right in rejecting his contentions. 9. The question whether there was a decree which Mamutty could have executed, the decree i. e. O. S. No. 75 of 1927 against the tarwad depends upon the construction to be placed on the terms of the decree, and it was for the execution court to decide what was the construction to be put upon the terms of the decree. The tarwad which was properly represented in the execution proceedings should have therefore raised the question that there was no executable decree against it when Mamutty sought to execute the decree and sell the tarwad properties in execution. It is now concluded by the order of the executing court allowing execution against the tarwad. 10. It was also urged by the respondent's counsel that the appellant is concluded by the judgment of the Madras High Court in S.A. No. 716 of 1952 of that court. The appellant was a party to that appeal, but it is contended by the appellant's counsel that no notice of that second appeal was served on him and that he is not therefore bound by the judgment therein. The appellant was a party to that appeal, but it is contended by the appellant's counsel that no notice of that second appeal was served on him and that he is not therefore bound by the judgment therein. The respondent's counsel contended that, if the second appeal was decided ex parte without proper notice to the appellant, his remedy is to move the Madras High Court for setting aside the ex parte decision and that so long as the ex parte decision stands he is bound by that decision. It was represented before us that an application for setting aside the ex parte decision is now pending in the Madras High Court. In view of that fact we are not expressing any opinion as to whether the decision in S.A. No. 716 of 1952 of the Madras High Court would conclude the contentions of the parties in the present second appeals also. 11. In the result, for the reasons stated in Para.8 above, we hold that the courts below were right in dismissing the suits, and dismiss these second appeals with costs. Dismissed.