Thankamma and Others vs Santhakumari Amma and Another

S.S. Subramani, J.—Respondents 5 to 9 in I.A. No. 311 of 1987 in O.S. No. 40 of 1976, on the file of District Munsif''s Court at

Padmanabhapuram, are the appellants before this Court.

Plaintiff, who is the first respondent herein, filed the suit O.S. No. 40 of 1976, for redemption. The mortgage is dated 21.11.1951. The

nomenclature of the document is ''Otti'' of the erstwhile Travancore area. Preliminary decree was passed on 12.7.1977, and two months'' time was

provided for deposit of the mortgage amount. As per the said preliminary decree, an amount of Rs. 2,290.73 was to be depos-ited. The

mortgagees were not satisfied with the quantum of mortgage money payable to them and, therefore, filed A.S. No. 316 of 1977. There was no

stay of proceedings. But, on 23.2.1983, the appellate court modified the preliminary decree passed, and an additional amount of Rs. 900 was

directed to be deposited. To that extent, preliminary decree passed by the trial court was modified. Within three years, on 30.9.1985 the entire

amount payable to the mort-gages was deposited, and, I.A. No. 311 of 1987 was filed on 4.2.1987 to pass a final decree, and final decree was

passed on 25.2.1988. The mortgagee contended that the application was barred by limitation, which was not accepted by the trial court. The

mort-gagee filed an appeal as A.S. No. 2 of 1989 against the final decree, without success. It is against the con-current judgment, appellants have

preferred this second appeal.

At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:

(1) Whether courts below erred in law in applying Order 34, Rule 5, C.P.C. and stating that application for final decree can be filed even in a suit

for redemption of a usufructuary mortgage, before the confirmation of the sale:

(2) Whether courts below erred in law in failing to take note of the fact that the suit is not one by the mortgages for sale of the hypotheca but it is

one for redemption;

and

(3) Whether the courts below erred in law in failing to hold that the application to pass a final decree which had been admittedly filed beyond three

years from the date of the preliminary decree is barred by limitation.

Even in the questions of law, the mortgage in question is termed as usufructuary mortgage, it is not dis-puted by learned Counsel for the

appellants that the nomenclature of the deed is ''Otti'' of the erstwhile Travancore area. ''Otti'' in that area is an anomalous mortgage where the

mortgagor is also personally liable for the amount. Question of law has been raised as if the mortgage that is sought to be redeemed is a

usufructuary mortgage. In this connection, it may also be noted that there was a Purakkadamom 8.2.1958 which also strengthens the inference that

it is only an anomalous mortgage.

Learned Counsel for the appellants contended that the preliminary decree was passed in 1977 and I.A. was filed only on 4.2.1987 and,

therefore, the application should not have been entertained, and the same is barred by limitation. Learned Counsel further submitted that even

though the preliminary decree was modified in appeal as per judgment dated 23.2.1983, the application was filed beyond three years. For that

reason also, learned Counsel contended that a final decree should not have been passed.

In a recent decision of the Supreme Court reported in K. Parameswaran Pillai v. K. Sumathi , which arose from a case of this Court, it was held

that Article 137 of the Limitation Act will apply. In that case, their Lordships held that ''till the date of passing of final decree and execution or till

the remedy is barred by time mentioned under Article 137 of the Schedule to Limitation Act, the court has power and jurisdiction to entertain an

application to pass a final decree. At any time before the remedy is barred, it is open to the plaintiff to deposit the redemption money under the

preliminary decree''. Admittedly, in this case, the amount was deposited within three years from the date of the appellate judgment. In para 2 of the

judgment, after extracting the relevant portions of Order 34, Rules 7 and 8, C.P.C., their Lordships held in paragraph 4 as follows:

Under Order 34, Rule 7(2), the court may on good cause shown and upon terms, to he fixed by the court, from time to time at any time before

passing of a final decree for foreclosure or sale as the case may be, extend time fixed for the payment of the amount found or declared due under

Sub-rule (1), or of the amount adjudged due in respect of subsequent cost, charges, expenses and interest. Sub-rule (3) of Rule 8 postulates that

on the default committed by the plaintiff, the defendant has been invested with a right to make an application to pass final decree. Clause (a) of

Sub-rule (3)"" of Rule 8 covers the filed of passing final decree of a mortgage by conditional sale or of such an anomalous mortgage declaring that

the plaintiff and all persons claiming under him are debarred from all rights to redeem the mort-gaged property. Clause (b) covers cases of ""any

other mortgage "" but not being usufructuary mort-gage to pass a final decree that the mortgage property or a sufficient part thereof he sold and the

sale proceeds, after deducting therefrom the expenses of sale, be paid into court and the sale proceeds be applied to discharge the mortgaged

debt, etc. The legislative intent, thereby, is clear that the plaintiff has been empowered to make an application either for foreclosure or sale of a

hypotheca or redemption of any other mortgage except usufructuary mortgage. By operation of Sub-rule (1) of Rule 8 where, before a final decree

debarring the plaintiff from all rights to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a

final decree passed under Sub-rule (3) of Rule 8, the plaintiff makes payment into court of all amounts due from him, the final decree is discharged.

The resultant operation of the law would be that in the case of ""usufructuary mortgage, the plaintiff need not make any application for extension of

time fixed in the prelimi-nary decree. The mortgagee/defendant has no right to make an application to foreclose the right of the plaintiff or sale of

hypotheca declaring that the plaintiff has been debarred from making payment in court or to proceed further. At any time before passing the final

decree or confirmation of the sale held in pursuance of the final decree the plaintiff usufructuary mortgagor has been given right to make payment of

the redemption money due under preliminary decree and the sub-sequent liability incurred thereon. The outer limit for making such payment is

passing of the final decree or confirmation of the sale made in furtherance thereof. The final decree for foreclosure or sale or redemption in relation

to other mort-gages, the right to payment has been hedged with the duty to deposit the money declared or quantified in the preliminary decree

within the time specified under the preliminary decree or extended period from time to time till final decree debarring the plaintiff from redemption,

etc. is ""passed. The outer limit for a usufructuary mort-gagor for making payment of the amount due under the preliminary decree thereby is

passing of the final decree or the date of confirmation of the sale.

In paragraph 7 of the judgment, their Lordships further went on and said thus:

... So long as the final decree for redemption is not passed, at any time before final decree is passed or sale made in furtherance thereof is

confirmed, it is open to the respondentmortgagor to redeem it.

In an earlier Division Bench decision of the Kerala High Court reported in Sulaika Kunju v. Krishna Pillai 1985 K.L.T. 81, their Lordships

followed a decision of this Court reported in Gurusami Naidu v. Govindappa Naidu and Ors. AIR 1933 Mad. 762 and also the decision reported

in Sambhunath Auddy Vs. Tarak Nath Auddy and Others, . In that case, their Lordships held thus:

The court has jurisdiction under Order 34, Rule 5 of the Code of ""Civil Procedure as amended in Kerala for extension of time fixed for deposit

under Order 34, Rule 4, until such time as the mort-gage is itself extinguished by resort to the provisions of foreclosure or sale that may be

applicable to mortgages other than usufructuary mortgages as provided for in Order 34, Rule 4(b)(ii) of the Civil Procedure Code, as amended in

Kerala.

Similar are the provisions in the Code of Civil Procedure, as amended by the High Court of Madras.

In view of the binding decisions of the Supreme Court and of our High Court, I am of the opinion that the contention of learned Counsel for the

appellants cannot be accepted. Questions of law raised for consideration are, therefore, found against the appellants, and consequently, the second

appeal is dismissed with costs.