Karnataka High Court
Sri. D Shivakumar vs Sri. C G Manjunatha on 11 February, 2025
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.846 OF 2020
CONNECTED WITH
WRIT PETITON NO.15956 OF 2023
IN RFA NO.846/2020
BETWEEN:
1. SRI. SHIVAKUMAR
AGED ABOUT 49 YEARS,
S/O LATE SRI. SURAYANARAYANA D N.,
R/AT OLD NO.317,
NEW NO.2, 7TH MAIN ROAD,
(MAIN FRONT HOUSE)
VYALIKAVAL,
BENGALURU - 560 003.
2. SMT. N. VARA LAKSHMI
SINCE DEAD BY HER LEGAL HEIRS
2(a) SRI. NANJESH BABU B S
H/O LATE N.VARALAKSHMI
AGED ABOUT 52 YEARS
2(b) KUM. MAHESHWARI N
D/O NANJESH BABU B S
AGED ABOUT 19 YEARS
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BOTH ARE R/AT:
NO.317, 7TH MAIN,
VYALIKAVAL,
MALLESWARAM,
BENGALURU - 560 003.
...APPELLANTS
(BY SRI. D. PRABHAKAR, ADVOCATE)
AND:
1. SRI. C. G. MANJUNATHA
SINCE DEAD BY HIS LEGAL HEIRS
1(a) SMT. P. PADMAVATHI
W/O LATE C.G.MANJUNATHA
AGED ABUT 44 YEARS
1(b) KUM. C.M.SUPRITHA
D/O LATE C.G. MANJUNATHA
AGED ABOUT 21 YEARS
1(c) SRI. C.M.HARSHITH
S/O LATE C.G.MANJUNATHA
AGED ABOUT 19 YEARS
ALL ARE R/AT:
NO.6, RAMAKRISHNA STREET,
SESHADRIPURAM,
BENGALURU - 560 020.
...RESPONDENTS
(BY SRI. PRADEEP J S., ADVOCATE FOR R1(A TO C) )
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 OF THE
CPC., AGAINST THE JUDGMENT AND DECREE DATED: 14.02.2020
PASSED IN OS NO.8885/2001 ON THE FILE OF THE XIV ADDL.CITY
CIVIL JUDGE AT BANGALORE (CCH-NO.28) DECREEING THE
REDEMPTION OF MORTGAGE DEED AND OTHER RELIEFS.
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IN WP NO.15956/2023
BETWEEN:
1 . SRI. D. SHIVAKUMAR
AGED ABOUT 49 YEARS,
S/O. LATE SURYANARAYANA D N
RESIDING AT OLD NO. 317,
NEW NO. 2, 7TH MAIN ROAD,
(MAIN FRONT HOUSE),
VYALIKAVAL,
BENGALURU - 560 003.
SMT. N. VARALAKSHMI @ LAKSHMI
SINCE DEAD BY HER LEGAL HEIRS
2 . SRI. NANJESH BABU B.S
H/O LATE N VARALAKSHMI
AGED ABOUT 52 YEARS,
3 . KUM. MAHESHWARI N
D/O. NANJESH BABU B S
AGED ABOUT 19 YEARS,
DELETED AS PER THE ORDER PASSED
BY THE HON'BLE COURT ON THE
MEMO OF PETITIOENR
VIDE ORDER DATED 28/11/23.
BOTH ARE R/AT: NO.317,
7TH MAIN, VYALIKAVAL,
MALLESWARAM,
BENGALURU - 560 003.
...PETITIONERS
(BY SRI. D. PRABHAKAR, ADVOCATE)
AND:
SRI. C G MANJUNATHA
SINCE DEAD BY HIS LEAGAL HEIRS
1. SMT. P. PADMAVATHI
W/O LATE C G MANJUNATHA
AGED ABOUT 44 YEARS
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2. KUM. C M SUPRITHA
D/O LATE C.G. MANJUNATHA,
AGED ABOUT 21 YEARS,
3. SRI. C. M. HARSHITH
S/O LATE C. G MANJUNATHA
AGED ABOUT 19 YEARS,
ALL ARE R/AT:
NO.6, RAMAKRISHNA STREET,
SESHSADRIPURAM,
BENGALURU - 560 020.
4. SMT. CHANDRAKALA
W/O D. N. SURYANARAYANA,
NO.2, 7TH MAIN ROAD,
VYALIKAVAL,
BENGALURU - 560 003.
NOTE: (DEFENDANT NO.4
RESPONDENT NO.3
IN IDP NO.109/20 TRIAL COURT
WHO WAS PLACED EX PARTE
AND NOW DEAD,
NO LEFAL HEIRS).
...RESPONDENTS
(BY SRI. N. SUBBA SHASTRY, ADVOCATE FOR R1 TO R3;
VIDE ORDER DATED.11/8/23, R4 DECEASED AND STEPS TO
BRING IS DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE COMMON
ORDER DATED:21.7.2023 PASSED BY THE HON'BLE XIV ADDL. CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, IN FDP.NO.109/2020
ON APPLICATIONS FILED UNDER ORDER 21 RULE 24, WHICH IS
NUMBERED AS IA.NO.8 AND INTERLOCUTORY APPLICATION FILED
UNDER SEC 151 OF CPC, WHICH IS NUMBERED AS IA.NO.9 VIDE
ANNEXURE-A.
THESE APPEAL AND PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 09.12.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON : 09.12.2024
PRONOUNCED ON : 11.02.2025
CAV JUDGMENT
This RFA No.846/2020 is filed by the appellants/defendants under Section 96 of CPC for setting aside the judgment and decree passed by XIV Addl. City Civil and Sessions Judge, Bengaluru, in O.S.No.8885/2001 dated 14.2.2020 for having decreed the suit of the plaintiff.
2. W.P.No.15956/2023 is filed as against the order passed by the same court in FDP No.109/2020 on the application filed under Order 21 Rule 24 of CPC and Interlocutory Application filed under section 151 of CPC by the appellant.
3. Heard the arguments of learned counsel for the appellants in the appeal and the counsel for petitioners in writ petition and learned counsel for the respondents.
4. The appeal is preferred as against the preliminary decree and the writ petition is filed as against the proceedings in FDP. 6
5. The appellants are defendants and the respondent No.1 was the plaintiff before the trial court and the ranks of the parties are retained for the sake of convenience.
6. The case of the plaintiff before the trial court is that the plaintiffs have filed suit for redemption of mortgage deed dated 5.9.1990 executed by the deceased mortgager Venkatalakshmamma in favour of the deceased mortgagee D.S.Meena. It is contended that the suit schedule property bearing old No.317 and New No.2 situated at 7th main road Vyalikaval, consisting of main house and an out house belonging to one B.R.Gopalakrishna who died in the year 1982 by leaving behind his wife Venkatalakshmamma and unmarried daughter i.e., the plaintiffs, as his legal heirs. The said B.R.Gopalakrishna had son by name Shivarmu, he was pre-deceased to his father. Hence the Venkatalakshmamma and plaintiffs have settled the entire property. The Venkatalakshmamma being eldest female member used to administer the property, she has mortgaged a portion of property in favour of DS Meena who is wife of defendant No.1 on 5.9.1990. It is a usufructuary mortgage with possession for a sum of Rs.30,000/-. The mortgage period is for 7 years. The mortgagee was put in possession and enjoyed the property as a security for the advance amount, until the mortgage amount is paid by the 7 mortgagor to the mortgagee. The property shall remain in possession of the mortgagee. The mortgagee died on 24.10.1994 by leaving behind her husband and children i.e., defendant Nos.1 to
3. The defendants have continued to be in possession under usufructuary mortgage. The defendant has filed a suit against the plaintiff in O.S.No.2840/1999. The original mortgagor Venkatalakshmamma died on 30.7.1998 by leaving behind the only legal heir, the plaintiff to succeed the estate. After the expiry of 7 years of mortgage period, the plaintiff issued the legal notice to defendant No.1 and demanded to revise the mortgage amount and hand over the possession and reconvey the mortgage property. The defendant No.1 replied that he is ready to receive the mortgage amount and redeem the mortgage, but refused to handover the vacant possession. Hence, the suit is filed by the plaintiff against the defendant for redemption of mortgage along with the mesne profit and other relief.
7. It is further alleged that during the pendecy of the suit, the original plaintiff died and during her lifetime, she also executed a Will dated 6.8.1998 in favour of one C.G.Manjunath and his mother Venkatalakshmamma, since Venkatalakshmamma also reported to be dead, her son C.G.Manjunath got impleaded as a legal heir based upon the Will.
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8. In pursuance of the summons, the defendants appeared and filed written statement contending that the suit is not maintainable either in law or in facts. It is also denied that the Gopalkrishna died by leaving behind Venkatalakshmamma and the plaintiff. The Gopalkrishna bequeathed all property in favour of Sathya Sai Trust, White field, Bangalore, by virtue of the said 'Will' that the entire property shall vest with the trust, after the death of Venkatalakshmamma. The plaintiff has no right to seek any redemption of mortgage. It is admitted that the mortgage period was 7 years and Meena Kumari was in another house and she was forced to leave the said house. She has approached Venkatalakshmamma to lease the front portion, which had become vacant. Meena Kumari occupied the said house on 15.6.1990 and as a tenant she was paying a rent of Rs.100/-. As per the Rent Control Act, Venkatalakshmamma received rent from Accommodation Controller, HRC(VCR 7/90 dated 8.10.1990). Thereafter, Venkatalakshmamma appraised the wife of the defendant No.1, that in order to get over from Sections 4, 5, 6 and 7 of Rent Control Act, there was only method of executing usufructuary mortgage in favour of D.S.Meena. The same was agreed and mortgage deed was executed in favour of the Venkatalakshmamma and defendants were statutory tenant in the first instance and later continued in occupation as mortgagee in 9 possession. The mortgage deed is redeemed, the defendants are entitled to remain in possession on a monthly rent of Rs.100/-, which was being paid by D.S.Meena. The tenancy which was in abeyance stood revived when the defendant occupied the schedule premises it was dilapitated condition. The said tenant D.S.Meena and defendant had spent Rs.25,000/- for repair or making the schedule premises fit for human consumption which was done with consent of Venkatalakshamma who promised to reimburse the entire cost when the defendant vacates. Hence, the defendants are entitled for recovery of Rs.25,000/- from the plaintiffs. The defendants also paid electric bills and other charges, in respect of outhouse and they are entitled for reimbursement of the same. The suit is not maintainable, it is bad for non joinder of necessary parties. The father of the defendant died leaving behind second wife Chandrakala as legal representative with other defendants, she is also entitled in the suit. The plaintiff is not entitled for the same, there is cause of auction arose. Hence, prayed for dismissing of the suit.
9. Based upon the pleading of the parties the Trial Court has framed the following issues, additional issues and recasted additional issues:
"1. Whether the plaintiff proves that he is the owner of suit schedule property?10
2. Whether plaintiff proves that the mortgagor mortgaged the property in favour of Smt. Meena for Rs.30,000/- as contended in paragraph 7 & 8 of the plaint?
3. Whether defendants prove that they have repaired the building by spending Rs.25,000/-and the defendants are entitled for Rs.25,000/- as contended in paragraph 5 of the written statement?
4. Whether defendants prove that they are the statutory tenants in respect of the suit schedule property?
5. Whether plaintiff is entitled for redemption of mortgage, possession, mesne profits and other reliefs?
5. What order or decree?
Additional Issue framed on 7.8.2007
1. Whether Smt.Chandrakala is a necessary party to this suit?
Additional Issue No.2 framed on 7.2.2018 Whether the LR of the plaintiff proves the original plaintiff Smt. Suguna B.G. had executed the Will dated 6.8.1998 bequeathing the suit schedule property in his favour?
Additional Issue No.3 framed on 10.04.2018 Whether the LRs of defendant No.2 proves that suit of the plaintiff is not maintainable without seeking relief of declaration.
Additional Issue framed as per the order dated: 19.11.2018
1. Whether the plaintiff proves that, B.G.Suguna executed Registered will, dt.6.8.1998?
2. Whether the plaintiff further proves that, he become full beneficiary after the death of Venkatalakshmma under the said Will dt.06.08.1998?11
3. Whether the plaintiff further proves that under the said Will he acquired the right for seeking the decree for the relief of redemption and other reliefs.?
Additional Issue framed on 02.08.2019
1. Whether defendant No.2 proves that in view of the execution of the Will by the late B.R.Gopal Krishna the original owner in favour of Sri.Sathya Sai Education & Publication Foundation Central Trust dated 23.11.1079, Smt.Sugana (original plaintiff) had no right to execute the Will infavour of Sri.C.G.Manjunath as she had limited interest in the suit schedule property?
Recasted Additional Issues framed on 02.08.2019
1. Whether defendant No.2 proves that in view of the execution of the will by the late B.R. Gopal Krishna the original owner in favour of Sri. Sathya Sai education & Publication Foundation Central Trust dated 23.11.1979, Smt. Sugana (Original plaintiff) had no right to execute the Will in favour of Sri. C.G. Manjunath as she had limited interest in the suit schedule property?"
10. To prove the case, the PA holder of the plaintiff was examined as PW.1 and other three witnesses are also examined as PWs.3 to 5 and got marked seven documents as per Ex.P.1 to Ex.P.5. Defendant No.2 himself examined as DW.1 and got marked five documents as EX.D.1 to Ex.D.5. After hearing the arguments, the Trial Court has answered the issues, additional issues and recasted additional issues as under in para 10 of the judgment of the Trial Court as follows:
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Issue No.1 In the affirmative,
Issue No.2 In the affirmative,
Issue No.3 In the negative,
Issue No.4 In the negative,
Additional Issue dated In the negative,
7.8.2007
Additional Issue No.2 In the affirmative,
dated 7.2.2018
Additional Issue No.3 In the negative,
dated 10.04.2018
Additional Issue No.1 In the affirmative,
dated 19.11.2018
Additional Issue No.2 In the affirmative,
dated 19.11.2018
Additional Issue No.3 In the affirmative,
dated 19.11.2018
Recasted Additional Issue In the negative
dated 02.08.2019
Issue No.6 As per final order for the
following
11. The Trial Court decreed the suit of the plaintiff by directing the defendant to redeem the mortgage of the suit schedule property by receiving the mortgage amount of Rs.30,000/- in the court and to vacate the suit schedule property and hand over the vacant possession of the said property in favour of the legal heirs of the plaintiff. Being aggrieved by the same, the appellant are before this Court.
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12. Learned counsel for the appellants/defendants has seriously contended that the judgment of the Trial Court is erroneous and liable to be set aside, as necessary parties are not made as a party. Even otherwise, the defendant was continued as tenant even prior to the mortgage and after the redemption of the mortgage, the defendant will continue to be a tenant, which was inducted under the HRC Act. It is also contended that the legal representatives of the plaintiff had sold the suit schedule property during the pendency of the suit in 2016, but did not disclose and continued the matter. Hence, additional written statement was filed which was brought into notice of the Court. The purchaser cannot be a legal heirs. It is further contended that the Trial Court has not framed the issues and given any findings on this issue. Hence, the parties sold the property as per Section 16 of the TP Act mortgagors losses the right for redemption of mortgage. It is further contended that the plaintiff has full of knowledge while selling the property and lost the right, but continued the suit which is contrary to the provisions of Section 16 of the TP Act and also contended that the plaintiff admits in the cross-examination that he has sold the property. Hence, prayed for allowing the appeal and dismiss the suit.
13. Learned counsel for the respondent has contended that the defendant is the mortgagee of the suit schedule property, 14 which was created in 1990. The suit filed by the plaintiff for redemption of the mortgage, but the plaintiff sold the property during the pendency, the plaintiff can recover the mortgage property from the defendant, the suit must be continued by the subsequent purchaser also. The rate of redemption passes to the subsequent purchaser and the respondent supported the judgment of the Trial court. Hence, prayed for dismissing of the appeal.
14. Heard the argument of learned counsel for the appellant and respondent and perused the records.
15. The points that arise for consideration are:
(i)Whether the plaintiff proves that she is the owner of the suit schedule premises by way of Will dated 06.08.1998?
(ii)Whether the defendant proves that the plaintiff cannot seek relief of redemption of mortgage inspite of alienating the property to 3rd parties, during the pendency of the suit?
(iii)Whether the defendant further proves that even after redemption of mortgage, the defendant continue to be a tenant under the suit schedule premises?
(iv)Whether judgment of the trial court calls for any interference?
16. Upon hearing the arguments, perused the records, which reveals the defendant become the mortgagee under the mortgage 15 deed executed by one Venkatalakshmamma the original owner of the suit schedule premises on 05.09.1990 and the mortgage was for 7 years. The said Venkatalakshmamma succeeded the property from B.R.Gopalakrishna her husband. She had an unmarried daughter i.e, plaintiff. Venkatalakshmamma, and the plaintiff have settled their entire property. The Venkatalakshmamma being eldest female member administrated the property and mortgage the property in favour of the Meena, who is wife of the defendant No.1, which is usufructuory mortgage, where the possession was delivered to the wife of the defendant No.1 and there is no rent payable. The mortgage amount was Rs.30,000/- and after expiry of 7 years, if the mortgage shall be redeemed by paying Rs.30,000/-. Subsequently, the mortgagee Meena died by leaving behind her husband and children and the defendant said to be continued in the possession of the property and after the death of Venkatalakshmamma, the plaintiff succeeded the estate and thereafter he said to be executed Will in favour of Manjunath, the deceased plaintiff on 06.08.1998. After the suit, the said Manjunath impleaded himself as legal heir based upon the Will. Accordingly, after the expiry of the lease period, the suit filed for redemption of mortgage. In view of the documents produced by the plaintiff, in respect of ownership of the schedule property by the Venkatalakshmamma succeeded by her daughter Meena, Suguna 16 and the said Suguna said to have filed the suit. During the pendency of the suit, Manjunath was impleaded as plaintiff after the death of Suguna under the Will. In respect of ownership of the property, mortgaging the suit schedule property, in the name of the deceased Meena who is the wife of the defendant No.1, were all not in dispute. In view of executing Will by Suguna, the plaintiff became the owner of the property as a legal heir, he has continued the suit. The defendant is only a husband of the mortgagee and he cannot dispute the ownership of the property, as once a mortgage is always a mortgage and he cannot become the owner. The Ex.P.1 is General Power of Attorney, went to one Chandrashekar by the plaintiff who examined as witness. Ex.P.2 is the notice. Ex.P.3 is the reply notice. Ex.P.4 is the certified copy of the mortgage deed. Ex.P.5 is Will. Ex.P.6 is death certificate of Venkatalakshmamma. Ex.P.7 is death certficiate of Suguna. These documents were not seriously disputed by the defendant and in view of the undisputed fact and owner of the property, who is a mortgagor which has been succeeded by the present plaintiff, while filing the suit and subsequent to the filing of the suit. Therefore, there is no error committed by the trial court holding the plaintiffs are owner of the schedule property and the respondents are mortgagees under the mortgage deed at Ex.P.4.
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17. In respect of point No.2, the contention raised by the defendant/appellant is that during the pendency of the suit, the plaintiff have executed the sale deed in favour of the 3rd parties and continued the suit by suppressing the fact. Therefore, the plaintiff has no power to continue the suit without substituting the sufficient purchaser as plaintiff and therefore, the plaintiff has no locus standi to continue the suit for the purpose of redemption of mortgage. In this regard, the learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in the case of Allokam peddabbayya and another Vs Allahabad Bank and Others in Civil Appeal Nos.2763-2764 of 2008, wherein the Hon'ble Apex Court has held in para 17 of the judgment that the trial court has not given finding in respect of sale of property mortgaged by the respondent which was concluded between the appellant and respondent No.1 and the court was essentially concerned with the exercise of discretion under Article 136 of Constitution of India and has held that the subsisting right to redeem the property was never gone into by the trial court as well as the High Court. Therefore Hon'ble Apex Court rejected the plaint. At paragraph No.23 it is held that the right of redemption which is embodied in section 60 of the Transfer of Property Act is available to the mortgagor unless it has been extinguished by the act of parties or by decree of a court and it has held the mortgagors right of redemption will be 18 extinguished but the conformant of the power, to save the mortgage property without intervention of the court in a mortgage deed, in itself will not deprive the mortgagor or his right of redemption.
18. It is further held that the extinction of the right of redemption has to be subsequent to the deed conferring such power and the right of redemption is not extinguished at the expiry of the period. And also held the transfer of mortgage property had taken place in favour of the appellant and therefore the statutory right of redemption available to respondent No.3 was never lost.
19. Learned senior counsel appearing for respondent has contended that though the property said to be sold by the mortgagor who is legal heir of original owner of the mortgagor was sold to one Uday Shankar on 30.06.2016 during pendency of the suit, that was not brought to the notice of the court. However, the right over the property has been extinguished, but the redemption of mortgage will not be extinguished. Also, stated that the subsequentl purchaser Uday Shankar is not a necessary party to the proceedings and in support of his contention he has relied upon the judgment of the Gujarath High Court in the case of Vora Aminbai 19 Ibrahim Vs Vora Taheral Mohmedali and others reported in 1997 SCC Online Guj 77 at paragraph No.11 has held as under
A mortgage is created by act of parties. In usufructuary mortage, the transfer loanmademortgage rated the possession and enjoyment of the usufruct. The rights of a usufructuary mortgage form part of the bundle of rights which constitute ownership the remainder still remains with the mortgagor and can be transferred by him. On the execution of a mortgage two distinct rights are carved out, namely, (i) the mortgagee's right (i) and (ii) the mortgagor's right. The mortgagee's right is the right of security for the respondent of his loan. The mortgagor's right is as indicated in Section 60 of the Transfer of Properly Act, i.e., after the principal money has become due, the mortgagor has a right to pay the mortgage money and on such payment he has a right to require the mortgagee, among others, to deliver possession. This right cannot be extinguished except by the act of parties or by a decree of a Court. This right is called the right to redeem and a suit to enforce it is called a suit for redemption. Thus, the scope of a suit for redemption is primarily to enforce the right to make payment of the mortgage money. A claim to redeem a mortgage actually does not attach to the land, although the decree passed in that suit may ultimately affect possession which is also an interest in land. An owner has a bundle of interests in property. By executing a mortgage he transfers only some interest to the mortagee and that also by way of security. That 20 interest is confined to realization of mortgage debt, which, in the event of nonpayment, may be realized out of the said security. What remains with the mortgagor after execution of the mortgage, is the ownership of the property, minus the interest transferred, and the right to repay the mortgage money and to get the burden of security discharged. That right has been created in the mortgagor and not in the property. Thus, when a mortagor enforces his right to redeem, he does not enforce a right in land.
and in another judgment the Hon'ble Apex Court, in case of Government of Orissa Vs Ashok Transport Agency and Others reported in (2005) 1 SCC 536 at para 9 has held as under:-
9. Normally, in a case covered by Order 22 Rule 10 of the Code of Civil Procedure where rights are derived by an assignee or a successor-in-interest pending a litigation, it is for that assignee or transferee to come on record if it so chooses and to defend the suit. It is equally open to the assignee to trust its assignor to defend the suit properly, but with the consequence that any decree against the assignor will be binding on it and would be enforceable against it Equally, in terms of Section 146 of the Code of Civil Procedure, a proceeding could be taken against any person claiming under the defendant or the judgment-
debtor. Similarly, a person claiming under the defendant or the judgment-debtor could seek to challenge the decree or order that may be passed 21 against the defendant, by way of appeal or otherwise, in the appropriate manner.
20. In another judgment reported in (2006) 13 SCC 608 in the case of Sanjay Verma Vs Manik Roy and Others at paragraph Nos.9 and 10 of the judgment has held as under,
9. Section 52 of the TP Act reads as follows:
"52. During the pendency in any court having authority within the limits of India .... of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under the decree or order which may be made therein, except under the authority of the court and on such terms as it may impose."
10. Bibi Zubaida Khatoon case¹ on which learned counsel for the respondents had placed reliance in fact goes against the stand of the respondents. Though a casual reading of para 9 supports the stand taken by the respondents, it is to be noted that the factual position was entirely different. In fact a cross-suit had been filed in the suit in that case. The respondents being transferees pendente lite without leave of the court cannot as of right seek impleadment in the suit which was in the instant case pending for a very long time. In fact in para 10 of the judgment this Court has 22 held that there is absolutely no rule that the transferee pendente lite without leave of the court should in all cases contest the pending suit. In Sarvinder Singh v. Dalip Singh² it was observed in para 6 as follows: (SCC pp. 541-42, para 6)
21. Learned senior counsel for respondent also relied upon the judgment of Hon'ble Supreme Court in case of Dhurandhar Prasad Singh Vs Jai Prakash University and Others reported in (2001) 6 SCC 534 at paragraph 7 has held as under;
7. Under Rule 10 Order 22 of the Code, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against persons upon whom such interest has devolved and this entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested, to apply to the court for leave to continue the suit. But it does not follow that it is obligatory upon them to do so. If a party does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by Their Lordships of the Judicial Committee in Moti Lal v. Karrabuldin' he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he colluded with the adversary. It is also plain 23 that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown of the Judicial Committee said in Prannath Roy Chowdry v. Rookea Begum², a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings.
22. Also relied upon the judgment of Hon'ble Apex Court in case of Singh Ram (Dead) Through Legal representatives Vs Sheo Ram and Others reported in (2014) 9 SCC 185 has held as under,
14. In Jayasingh Dnyanu Mhoprekar v.
Krishna Babaji Patil³, the question of limitation for redemption was not involved. Question was whether the mortgagor's right of redemption was affected when mortgaged land was allotted to mortgagees by way of grant under the provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, it was observed: (SCC p. 167, para 6)
6. The only question which arises for decision in this case is whether by reason of the grant made in favour of the defendants the right to redeem the mortgage can be treated as having become extinguished. It is well settled that the right of redemption under a mortgage deed can come to an 24 end only in a manner known to law. Such extinguishment of right can take place by a contract between the parties, by a merger or by a statutory provision which debars the mortgagor from redeeming the mortgage. A mortgagee who has entered into possession of the mortgaged property under a mortgage will have to give up possession of the property when the suit for redemption is filed unless he is able to show that the right of redemption has come to an end or that the suit is liable to be dismissed on some other valid ground. This flows from the legal principle which is applicable to all mortgages, namely 'Once a mortgage, always a mortgage'. It is no doubt true that the father of the first defendant and the second defendant have been granted occupancy right by the Prant Officer by his order dated 5-2-1964 along with Pandu, the uncle of Defendant 1. But it is not disputed that the defendants would not have been able to secure the said grant in their favour but for the fact that they were in actual possession of the lands. They were able to be in possession of the one-half share of the plaintiffs in the lands in question only by reason of the mortgage deed. If the mortgagors had been in possession of the lands on the relevant date, the lands would have automatically been granted in their favour, since the rights of the tenants in the watan lands were allowed to subsist even after the coming into force of the Act and the consequent abolition of the 25 watans by virtue of Section 8 of the Act. The question is whether the position would be different because they had mortgaged land with possession on the relevant date."
22. In view of the judgment of the Hon'ble Supreme Court in the above said cases and the Gujarath High court, I am of the view, even the plaintiff sold the property, but he has continued to contest the matter and subsequent purchaser not chosen to approach the court for stepping to the shoes of plaintiff for taking the matter against the respondent. Such being the case, until the mortgage is extinguished, the suit will not come to and end and it cannot be said to be not maintainable. Therefore, the contention raised by the appellant counsel that suit is not maintainable, is not acceptable. Accordingly, I answered the point No.2 in the negative.
23. As regards to the point No.3, the contention raised by the respondent, that the appellant was a tenant prior to the lease deed, the appellant was the legal heir of the tenant under House Rent Allowance Act and the same was allotted by the Rent controller to the wife of the appellant No.1, he became the tenant under the Rent Control Act. Therefore, even if mortgage agreement is entered, it is lapsed, the appellant will continue to be as a tenant in the premises. Though he has produced some of the documents in 26 order to show there was a suit premises allotted as a tenant under the Rent Control Act by the Rent Controller etc., but there is no reference available under the Ex.P.4 that the mortgagee is continued as tenant prior to the execution of mortgage deed, therefore, even after the expiry of lease period, the defendant should continue as tenant under the premises. When there is no reference or recital available for the lease deed, the said contention cannot be acceptable. Once even otherwise the original defendant entered as tenant in the schedule property and subsequently to the execution of mortgage deed and she became the mortgagee and the plaintiff becomes mortgager and the suit filed for redemption of mortgage after expiry of the mortgage period, it is pertinent to note that the mortgage deed was executed on 05.09.1990 and that the mortgage period was 7 years and the suit was filed in the year 2001, after the expiry of 3 years of the mortgage term, but the suit was disposed of, by the Trial Court in 2020. The Trial Court almost took 20 years for the disposal of the suit. Now it is 2025 almost 25 years litigation is pending. The expiry date was 1997 and almost 28 years, the plaintiff is enjoying the property without paying any rent under the guise of lease. The original mortgagee and mortgagor also died, but now the successor are litigating the matter. The contention of the defendant that as Ex.D1 to 4 and D5, that they are the tenant under the Rent Control Act, etc., cannot be 27 acceptable in view of the Rent Act came into force and they become the mortgagee and the relationship of rent controller, the land lord and tenancy not existing in view of the execution of mortgage deed. Such being the case, the question of continuing the defendant as tenant cannot be acceptable. Accordingly, answered the point No.3 in the negative.
24. On perusal of the judgment of the Trial Court, the Trial Court considering the evidence on record, appreciated the documents and rightly decreed the suit of the plaintiff and therefore the judgment of the Trial Court do not call for any interference of this court. The appeal is devoid of merits, hence liable to be dismissed.
25. In respect of W.P.No.15956/2023 where the same appellant filed this writ petition as against the order passed by the FDP court for having rejected the application on I.A.No.8 & 9 for staying the further proceedings of the final FDP proceedings until disposal of the above said appeal.
26. The petitioner filed an Interlocutory Application before the trial Court in the FDP proceeding in FDP No.109/2020 which was arising out of original suit and decree in O.S.No.8885/2001 which was upheld by the High court in RFA No.846/2020 and in the meanwhile, the trial court proceeded to issue delivery warrant and 28 started calculating the damages therefore, the petitioner filed application for staying all further proceedings of the FDP until disposal of the appeal by this court and the same was rejected by the trial court vide impugned order dated 21.7.2023 on the application filed by him under Order 21 Rule 24 of CPC.
27. Now in view of the deciding the appeal by this court in RFA No.846/2020 and dismissing the appeal, the question of staying FDP proceeding does not arises, therefore the writ petition cannot be allowed and it is also liable to be dismissed.
Accordingly I proceed to pass the following order The appeal filed by the appellant in RFA No.846/2020 is hereby dismissed.
Writ Petition No.15956/2023 filed by the petitioner challenging the order on I.A.No.8 & 9 in FDP 109/2020 is also dismissed.
Accordingly, the writ petition is hereby dismissed.
Sd/-
(K.NATARAJAN) JUDGE AKV/PNV CT:SK