Madras High Court
Stella Mary vs Felix Mariya Joseph on 21 July, 2015
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.07.2015
CORAM
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
C.R.P.(NPD)(MD)No.1540 of 2012
and
M.P.(MD)No.1 of 2012
Stella Mary : Petitioner
Vs.
Felix Mariya Joseph : Respondent
Prayer
Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the order dated 27.04.2012 passed in
Mortgage Redemption Original Petition No.1 of 2010 on the file of Principal
District Munsif Court, Trichirapalli.
!For Petitioner : Mr.R.Devaraj
^For Respondent : Mr.M.Ashok Kumar
:ORDER
The respondent filed Mortgage Redemption Original Petition No.1 of 2010 before the learned Principal District Munsif, Trichirappalli, to redeem the mortgaged property and hand over possession. The learned Principal District Munsif allowed the said application, by order dated 27 April, 2012. Feeling aggrieved, the respondent before the Trial Court has come up with this Civil Revision Petition.
2. The learned counsel for the petitioner contended that the respondent ought to have filed a suit before the concerned Court. According to the learned counsel, only a civil suit would lie for the relief of redemption and as such, the learned Trial Judge was not correct in allowing Mortgage Redemption Original Petition.
3. The learned counsel for the respondent justified the impugned order.
4. The respondent filed Mortgage Redemption Original Petition No.1 of 2010 before the learned Principal District Munsif, Tricirappalli, against the petitioner. According to the respondent, he received a sum of Rs.50,000/- as Othi from the petitioner and she was given possession. The parties have arrived at an understanding that the period of redemption is three months. The petitioner has agreed to receive the Othi amount of Rs.50,000/- and hand over possession, on expiry period of three months. The petitioner, without receiving the Othi amount from the respondent, filed a suit in O.S.No.620 of 2010 before the learned District Munsif, Trichirappalli. The petitioner wanted the Trial Court to restrain the respondent from evicting her except under due process of law. It was only thereafter, the respondent filed the Mortgage Redemption Original Petition before the Trial Court.
5. The petitioner, in her counter-affidavit filed in Mortgage Redemption Original Petition No.1 of 2010, has not taken up any issue with regard to maintainability. The petitioner contended that the amount was paid only as a part payment towards purchase of the property. In short, it was the contention of the petitioner before the Trial Court that the respondent agreed to execute necessary conveyance in her favour after receiving a sum of Rs.1,00,000/-.
6. The Original Petition relates to a mortgage. Section 60 of the Transfer of Property Act, 1882, permits the mortgagor to redeem the mortgage at any time after the principal money has become due. Section 60 gives rather a right to the mortgagor, on payment or tender, at a proper time and place, of the mortgaged money and to call upon the mortgagee to deliver the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. It was only to enforce the right guaranteed under Section 60 of the Transfer of Property Act, 1882, the respondent filed Mortgage Redemption Original Petition before the Trial Court. The petitioner wanted the respondent to file a suit for redemption. No such contention was taken before the Trial Court. In fact, it was the petitioner who approached the Trial Court, at the first instance, by filing a suit in O.S.No.620 of 2010.
7. The course of conduct adopted by the petitioner clearly shows that she wanted to keep possession of the property without permitting the respondent to exercise his right of redemption. I do not find any error or illegality in the order passed by the learned Trial Judge.
8. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is also dismissed.
To The Principal District Munsif Court, Trichirapalli.
.