Madras High Court
Balambika vs Elizabeth on 6 March, 1990
Equivalent citations: (1990)1MLJ369
ORDER A. Abdul Hadi, J.
1. This revision by the mortgagee is filed against the dismissal of E.A.No. 105 of 1989 filed under Section 47 of Code of Civil Procedure and in E.P.No. 130 of 1988 in O.P.No. 1 of 1986. The said O.P.No. 1 of 1986 was filed by the respondent usufructuory mortgagor herein, under Section 83 of the Transfer of Property Act, hereinafter called 'the Act'.
2. Admittedly in O.P.No. 1 of 1986 the respondent-mortgagor of the property in question, deposited the mortgage amount on 24-1-1986 as contemplated under Section 83 of the Act and notice was ordered to the mortgagee-petitioner herein as per the said section and though he entered appearance and was given time for filing counter on 11-11-1986 and on 3-12-1986 he did not file any counter. So, the respondent herein, who was the petitioner in the said O.P. was examined and there was no cross-examination by the petitioner herein, nor the petitioner herein let in any oral or documentary evidence. Never was it also pleaded that the mortgage amount deposited was not the correct amount due or that the petitioner was, unwilling to accept the mortgage amount. Then, on 12-1-1987 the order was passed in O.P.No. 1 of 1986 directing the petitioner herein to deliver the property to the respondent herein. Subsequent to the said order, the petitioner herein filed I.A.No. 872 of 1987 to set aside the said order in the O.P. on the ground that the said order in the O.P. was an ex parte order. The said I.A. also was dismissed holding that the said order in the O.P. as per Order 17, Rule 3, C.P.C., that there was also a delay of 15 days in filing the said application. That dismissal order was passed on 26-11-1987 and there is no appeal or revision against the said dismissal order or the earlier order in the O.P. Subsequently, when the respondent herein who secured the above order in O.P.No. 1 of 1986 filed E.P.No. 130 of 1988 to execute the said order. In the said E.P., the petitioner herein filed a counter. Therein, though it was admitted that the mortgage was discharged, it was pleaded that there was a tenancy which existed prior to the mortgage and subsisted still. But this plea of tenancy prior to the usufructuary mortgage cannot be of any avail since this Court has held that if there is a possessory mortgage in favour of the lessee, the lessee's interest gets merged in the mortgage rights at its acquisition and consequently there is an implied surrender of the leasehold, then itself (Vide Meenakshi Anvna v. Kizhakke Valath Narayani . Whatever it is, after hearing both the parties, the Executing Court by order dated 10-1-1989 ordered delivery of possession. Immediately thereafter, before delivery could be effected, the present E.A.No. 105 of 1989 was filed in February, 1989 and the court below has dismissed the said E.A. by order dated 7-9-1989 and against the said order, the petitioner, has filed this revision.
3. For the first time in this revision, a new reason is alleged for inviting the Court to hold that the order in O.P.No. 1 of 1986 was a nullity. The reason is that on receipt of notice of the O.P. filed under Section 83 of the Act, the petitioner herein did not file a petition stating his willingness to accept the deposit made by the respondent herein and that hence the court has no jurisdiction to pass the order it has passed and that it should have only directed the respondent herein to file a suit for redemption. It is to be noted that nowhere earlier, either in the counter to the above said E.P. or even in the affidavit filed in support of E.A.No. 105 of 1989, such a contention had been raised. Further, in O.P.No. of 1986 also no counter was filed by the petitioner herein. However since the learned Counsel for the petitioner contended that the order that was passed in O.P.No. 1 of 1986 was a nullity, it being beyond the scope of Section 83 of the Act, I allowed the learned Counsel for the petitioner to make the said submission on the ground of nullity, though it is not the case of the petitioner that the amount deposited by the respondent is the mortgage amount due was not coprect.
4. Section 83 of the Act runs thus:
At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.
The court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of sucn amount, and on depositing in the same court the mortgage-deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed, and all such other documents so deposited shall be delivered to the mortgagor or such other person as aforesaid.
Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the morgagor or to such third person as the morgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgement in writing that any right in derogation of the mortgagor's interest transferred to the mortgagee has been extinguished.
No doubt, the second paragraph of the above said Section 83 says that when notice of the deposit made by the mortgagor-petitioner is served on the mortgagee, the mortgagee "may, on presenting a petition ...stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount...Now the contention of the petitioner's counsel is that the petitioner did not present such a petition as contemplated in the second paragraph of Section 83 of the Act stating his willingness to accept the mortgage money deposited, and that in such a situation, the court had no jurisdiction to pass the order for delivery contemplated in paragraph 3 in Section 83 of the Act, but, that it should have if at all only referred the respondent to file a regular suit for redemption.
5. In support of his contention and on the scope of Section 83 of the said Act, he cited several decisions including Abohala Sastriar v. Kalimuthu Piliai (1962) 1 M.L.J.304: A.I.R. 1962 Mad. 308; Mothiar Mira Taragan v. Ahmatti Ahmed Filial I.L.R. 29 Mad. 232. Of all the decisions H.S. Brahmiah Achar v. Karur Ramiah (1969)2 Mys. L.J. 96 was nearer to the case in hand. The petitioner therein admitted the mortgage and said that he was prepared to receive the mortgage amount deposited, but at the same time he pleaded, there was an agreement between him and the mortgagor, that after the redemption of the mortgage, the mortgagee was to continue as a tenant of the mortgagor. Hence he prayed that the petition under Section 83 be dismissed. In such a situation the court held that on an application under Section 83 of the Act by the mortgagor depositing the amount in court, if the mortgagee does not file a verified petition and do such other acts contemplated under paragraph 2 of the section, it is not open to the court to decide or make any order on any points in dispute; if the mortgagee is not willing to receive the amount deposited, the section does not provide for an order being made compelling him to receive the amount deposited and to deliver possession and so the court has no jurisdiction to pass such an order of delivery.
6. There is force in the argument of the learned Counsel for the petitioner. Purely from a technical point of view and as a matter of law, the contention of the learned Counsel for the petitoner is well-founded. Nevertheless, I do not think that I should interfere with the order of the court below sitting in revision under Section 115 of Code of Civil Procedure, particularly in view of the two decisions cited by the learned Counsel for the respondent, viz., Chennichi alias Parikal v. Srinivasan Chettiar (1970) 1 M.L.J. 234 which was approved by a Division Bench of this Court in S.N. Kuba v. P.P.I. Vaithyanathan (1988) 1 T.N.L.J. 1. The relevant passage of Ismail J. (as he then was) in the above referred to Chennichi alias Parikal v. Srinivasan Chettiar (1970) 1 M.L.J. 234 runs as follows:
The exercise of the revisional powers of the High Court under Section 115, Civil Procedure Code, is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and subserve and ends of justice and not to deny or defect it. If interference in a particular case will result in hardship or injuctice to a party, the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction.
The relevant paragraph in S.N. Kuba v. P.P.I. Vaithyanathan (1988) 1 T.N.L.J. 1 runs as follows:
We are also inclined to accept the contention of the respondent that the discretionary jurisdiction under Section 115 of the Code of Civil Procedure should not be exercise when the order of the court subordinate renders justice to the parties on the facts of the case. A single judge of this Court has occasion to consider this question in Chennichi alias Parikal v. Srinivasan Chettiar (1970) 1 M.L.J. 234...We agree with the above observation of Ismail, J.
It has also been similarly held earlier also (vide T.P. Kuppuswami Pillai v. Alwar Chettiar A.I.R. 1935 Mad. 89 and Mt. Kuti Baru Bibi v. Jitendra Nath Roy A.I.R. 1931 Cal. 425. In Dominion of India v. Gobordhandas Shraff A.I.R. 1952 Cal. 384 it was also held that before interfering in revision, the High Court will take into consideration the conduct of the petitioner.
7. Applying these principles, I thing that I should not exercise my discretion under Section 115 of Code of Civil Procedure in favour of the petitioner, in view of his conduct as narrated above and in view of hardship or injustice which would be caused to the respondent, if the order of the court below is set aside. The mortgagee having not chosen to dispute the quantum of the mortgage amount deposited so for and having not made any such contention as he has done now for the first time, and nearly four years having been elapsed since the O.P. was filed, I am not inclined to interfere with the order that has been passed in E.A.No. 105 of 1989. Not only no counter was filed in the O.P., the stand taken by the petitioner in his counter in the above said E.P. was not the stand taken here in the C.R.P. for the first time. Further, he took an entirely different stand in the E.A. No doubt, the learned Counsel brought to my notice the decision in A.R. Antulay v. R.S. Nayak (1988) 2 S.C.C. 602 and Sushil Kumar Mehta v. Gobind Ram Bohra (1990) I S.C.C. 193. In A.R. Anthulay v. R.S. Nayak (1988) 2 S.C.C. 602 referred to above, the Supreme Court only held that in a collateral appeal, an earlier Supreme Court's order which is a nullity could be subsequently set aside by a larger Bench of the supreme Court. But, it did not deal with the question whether in a revision under Section 115, C.P.C. the High Court could be compelled to do so even where it would result in injustice to the respondent before it and even where the conduct of the petitioner before it was despicable. Further in Sushil Kumar Metha v. Gatrind Ram Bohra referred to above no doubt it was held that the decree which is made without jurisdiction and is a nullity could not be executed. But the case therein arose out of a writ petition under Article 227 of the Constitution of India and it did not specifically deal with the scope of discretionary nature of the revisional jurisdiction of this Court under Section 115, C.P.C. But the question more significantly here is, even though the O.P. order may be one passed without jurisdiction, whether the order of the executing court allowing the execution and dismissing the E.A. under Section 47, C.P.C. could be revised under Section 115, C.P.C. under the abovesaid circumstances of the case. The answer is in the negative in view of the abovesaid decisions cited in paragraph 6 above and the circumstances of the present case.
8. I, therefore, dismiss this Civil Revision Petition. No costs.