Madras High Court
Selvamony Nadar(Died) ... 7Th vs Thaveethu Nadar on 16 June, 2021
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.No.57 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.57 of 2003
and
C.M.P.(MD)Nos.3677, 3679, 3680, 3681, 3682, 3683,
3684, 3685 & 3686 of 2021
1.Selvamony Nadar(Died) ... 7th Defendant / 7th Respondent /
Appellant
2.S.Charles
3.S.Alexander ... Appellants
(Appellants 2 and 3 were brought on
record as Lrs of the deceased sole appellant
vide order dated 05.03.2021)
-Vs-
1.Thaveethu Nadar
2.Rajammal
3.Jessijanet
4.Muhammed Mammali
5.Muhammed Meera Pillai Kannu
6.Velayuthan
7.Kochukunjan
8.Mani
9.Royappan Nadar
10.Chellapan Nadar
11.Thankappan Nadar
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S.A.No.57 of 2003
12.Govindan Nadar
13.Thasayyan Nadar
14.Mideenkhan Sahib
15.Selvaraj Nadar
16.Ramaiyan Nadar
17.Ponnu Nadar
18.Govindan Nadar
19.Rajayyan Nadar
20.Chellaiyan Nadar
21.Ahamed Sahib
22.Appavu Nadar
23.Franciskhan
24.Therasammal
25.Devaki
26.Therasammal
27.Chellappan
28.Nesammal
29.Rethinam
30.Selvi
31.Kamalam
32.Sundari
33.Rajendran
34.Rajammal
35.Leela
36.Rathinam
37.Omana
38.Palayyan
39.Valsalam
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S.A.No.57 of 2003
40.Rethinam
41.Thankapalam
42.Thankappan
43.Manonmani
44.Kamalakshi
45.Ramaiyan
46.Nesamony
47.Therasamma
48.Omana
49.Devaki
50.Velappan
51.Vijayan
52.Prabhakaran
53.Sasikala
54.Sumankala
55.Valsala
56.Nalini
57.Ponnamma
58.Leela
59.Sulochana
60.Radha ... Plaintiffs 1 to 3 & Defendants 2 to 6, 8, 9, 12
to 17, 19, 20, 22, 23, 25, 26, 28, 31 to 50, 57 to
71 / Respondents / Respondents
61.D.Babu
62.R.Leela Bai
63.R.Suganthy
64.R.Suma
65.R.Baby
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S.A.No.57 of 2003
(Respondents 61 to 65 were brought as legal heirs
of the deceased first respondent vide Court
order dated 24.02.2016)
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the Subordinate Judge,
Kuzhithurai made in A.S.No.146 of 1997, dated 20.09.2002 pursuant to the
Judgment and Decree in I.A.No.1437 of 1979 in O.S.No.426 of 1968, dated
06.08.1997 on the file of the I Additional District Munsif, Kuzhithurai.
For Appellants : Mrs.Chitra Sampath
Senior Counsel for Mr.C.K.M.Appaji
For R2, R3,
R60 to R64 : Mr.N.Dilipkumar
For R38 : Mr.R.Sundar Srinivasan
For R1 : Dismissed
For R26 : Dismissed
For R6, R18,
R47, R48, R50 & R65 : no appearance
R7, R8 & R27 : Died
R4, R5, R9 to R17,
R19 to R25, R32 to R37,
R39 to R46, R49,
R51 to R56 : Remained exparte
R28 to R31 : Tapal returned
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S.A.No.57 of 2003
JUDGMENT
This second appeal arises out of final decree proceedings in a suit for redemption of mortgage.
2.The 7th defendant/7th respondent filed this second appeal. One Thaveethu Nadar and Rajammal filed O.S.No.426 of 1968 on the file of the Principal District Munsif Court, Kuzhithurai for redeeming the suit schedule properties. It is not necessary to set out the plaint averments. Suffice it to say that the case of the plaintiffs was that they had stepped into the shoes of the original mortgagor. In the suit, as many as 33 persons including the legal representatives of the original mortgagee had been shown as defendants. The stand of the plaintiffs was that defendants 7 to 33 were claiming under the original mortgagee. The case was strongly contested and the trial Court passed preliminary decree for redemption in favour of the plaintiffs on 03.07.1975. The decree holders thereafter filed I.A.No.1437 of 1979 for passing final decree. The final decree application was allowed by Judgment and decree dated 06.08.1997. Though there were as many as 71 respondents in the final decree application, D7-Selvamani Nadar alone filed A.S.No.146 of 1997 before the Sub Court, Kuzhithurai. The appeal was dismissed by the first appellate court on 20.09.2002. Questioning the same, this second appeal came to be filed. https://www.mhc.tn.gov.in/judis/ 5/17 S.A.No.57 of 2003
3.The second appeal was admitted on the following substantial questions of law:-
“(a) In the absence of the prior mortgagee, can the suit for redemption of the mortgage from the sub-mortgagees under the prior mortgagee maintainable in law?
(b) Whether the final decree application filed three years after the passing of the preliminary decree is barred by law of limitation?”
4.During the pendency of the second appeal, the appellant passed away and his legal representatives came on record. In the mean while, some of the respondents had also passed away. Notices were issued. The counsel on record for the appellant on the earlier occasion submitted that some of the respondents have still not been served and that, therefore, the appeal may be listed 'for final disposal' after the service of notice is completed. By now, the number of respondents had swelled to more than
70. I felt that if the appellant could make out a case on merits, then, I would consider the request for listing the appeal 'for final disposal' after the service on all the respondents is completed. Experience indicates that where the number of respondents is high, by the time service on legal representatives or a deceased respondent is completed, another respondent dies in the meanwhile and there is a need to bring his legal representative https://www.mhc.tn.gov.in/judis/ 6/17 S.A.No.57 of 2003 on record arises. The process can go on ad infinitum. The truth is many of the judges are liberal and the second appeals get easily admitted. So in situations such as the present one, it is only proper to call upon the appellant to argue the case on merits even if the service on all the respondents is not completed. In any event, the legal heirs of the plaintiffs are very much before this Court. I felt that the appellants ought to get along with the matter on merits, since the contesting respondents are present before this Court. Therefore, the matter was taken up 'for final disposal'.
5.The learned Senior Counsel appearing for the appellants contended that final decree application was patently barred by limitation. I was taken through the recitals of the suit documents. The mortgage in question is not usufructuary mortgage but an anomalous mortgage as is evident from the expression 'Othi'. In 1997-3-L.W.67 (Thankamma and four others Vs. Santhakumari Amma and others), it was held that a mortgage styled as 'Othi' can only be considered as anomalous mortgage. The suit mortgage, not being usufructuary mortgage, limitation for filing the final decree application will be three years from the date fixed for depositing the redemption amount. Reliance was placed on the Division Bench Judgment reported in 2011 (3) MWN (Civil) 590 (R.Vijayakumar Vs. The Official Liquidator, High Court, Madras as the Provisional Liquidator of RBF https://www.mhc.tn.gov.in/judis/ 7/17 S.A.No.57 of 2003 Nidhi Limited). The other major contention advanced by the learned Senior Counsel is that the first defendant who was shown as the first respondent in the final decree application had passed away during the pendency of the final decree proceedings. His legal representatives were not brought on record, though attempts were made. In view of non-bringing on record of the legal heirs of the first respondent, the final decree proceedings should be considered as having been abated against D1. In view of the character of the decree, abatement against the first respondent / first defendant would result in abatement against all the defendants/respondents in the final decree proceedings. In this regard, reliance was placed on the decision reported in AIR [1963] SC 553 (Ram Sarup Vs. Munshi and others). The learned Senior Counsel submitted that this Court should answer both the substantial questions of law in favour of the appellants and reverse the impugned Judgment and decree and allow this second appeal.
6.Per contra, the learned counsel appearing for the contesting respondents submitted that the impugned Judgment and decree does not call for any interference.
7.I carefully considered the rival contentions and went through the evidence on record. The contention as regards limitation can be taken up as https://www.mhc.tn.gov.in/judis/ 8/17 S.A.No.57 of 2003 first. There is no dispute that the preliminary decree for redemption was passed on 03.07.1975. The plaintiffs were to deposit Rs.495.45/-. Two months' time for deposit was also given. It is true that the plaintiff did not make the deposit. Nor the final decree application was filed within a period of three years thereafter. But then, it is a matter of record that the plaintiffs filed I.A.No.1438 of 1979 praying for amending the preliminary decree by scaling down the mortgage money to zero, that is by deleting the direction to deposit the mortgage money. This I.A. was allowed on 12.12.1979. Pursuant to the said order, the preliminary decree was also amended. The preliminary decree as originally passed read as follows:-
“That the plaintiffs do pay into Court on or before the 3rd day of September 1975 or any later date upto which time for payment may be extended by the Court, the said sum of Rs.491.45”.
A reading of the aforesaid clause in the preliminary decree as originally passed would show that the trial Court, even while directing the mortgagors/plaintiffs to deposit the mortgage money within a time frame , retained the jurisdiction to extend the time for deposit also. If the time for deposit had been subsequently extended, then, limitation period of three years would start running only from the extended date. In the case on hand, the preliminary decree was amended on 12.12.1979. The final decree application was filed on 21.07.1979 along with the applications seeking https://www.mhc.tn.gov.in/judis/ 9/17 S.A.No.57 of 2003 amendment. In view of the allowing of I.A.No.1438 of 1979 on 12.12.1979, the final decree application made in I.A.No.1437 of 1979 was within the limitation period. Notwithstanding the same, an alternative argument was also put forth by the learned counsel for the contesting respondents. He would state that this preliminary decree was put to challenge by Selvamani Nadar-D7 himself and others in A.S.No.370 of 1976 before the Subordinate Judge, Nagercoil. The first appeal was dismissed on 17.04.1979. Questioning the same, S.A.No.1383 of 1979 was filed before the Madras High Court. In the second appeal, an interim stay was originally granted and later, it was modified and finally, the second appeal itself came to be dismissed on 14.11.1986.
8.The learned counsel relied on the decision reported in AIR 1967 SC 1236 (Sital Parshad Vs. KishoriLal) for the proposition that where an appeal has been filed against the preliminary decree, the decree holder has the choice of filing the final decree application immediately and press the same, if no interim stay is granted in the first appeal. Even if no interim stay is granted in the first appeal, since the finality of the preliminary decree is open to doubt, the decree holder can wait till the disposal of the first appeal and thereafter, file the final decree application. https://www.mhc.tn.gov.in/judis/ 10/17 S.A.No.57 of 2003
9.Paragraph Nos.5 and 13 of the said decision reads as under:-
“5.....we may state certain well settled propositions with respect to preliminary and final decrees in mortgage suits and the effect of an appellate decree in general on the decree of the trial Court. Generally speaking, the decree of the appellate Court supersedes the decree of the trial Court even when it confirms that decree and, therefore, it is well settled that only the appellate Court can amend the decree thereafter: [see Muhammad Sulaiman Khan v. Muhammad Yar Khan] It is equally well settled that where an appeal has been taken from a preliminary mortgage decree and is decided, the time for preparation of final decree is three years from the date of appellate decree even though the appellate Court may not have extended the time for payment provided in the preliminary decree, where no final decree has been prepared in between:[See Jowad Hussain V. Gendan Singh] This applies even to a case where the decree of the appellate Court is made more than three years after the time fixed for payment in the preliminary decree: [See Fitzholmes v. Bank of Upper India]. Further it is well settled that the mere fact that there is an appeal from a preliminary decree does not oust the jurisdiction of the trial Court to prepare a final decree even while the appeal is pending unless there is a stay order: [see Sat Prakash v. Bahal Rai]. Even if a final decree has been passed an appeal from a preliminary decree is not incompetent and it is not necessary for a party to appeal both from the preliminary decree and the final decree in order to maintain his appeal against the preliminary decree. In such a case where the preliminary decree is set aside the final decree is superseded whether the appeal is https://www.mhc.tn.gov.in/judis/ 11/17 S.A.No.57 of 2003 brought before or after the passing of the final decree: [see Talebali v. Abdul Aziz]. Further it was observed in the last case that where an appellate Court sets aside or varies a preliminary decree it can, and indeed could, give direction for the setting aside or varying of the final decree, if the existence of the final decree is brought to its notices as in all cases it ought to be.
13.It will be seen from this form of the final decree that it is entirely dependent upon the preliminary decree. Therefore, where the preliminary decree has been confirmed in toto and the appeal therefrom has been dismissed, there is no change whatever to be made in the final decree, for that decree already provides for subsequent interest after the date of the preliminary decree and for subsequent costs, charges and expenses. Therefore, in such circumstances if the final decree has already been prepared before the Judgment in appeal from the preliminary decree, there is nothing more to be done and the final decree as it stands needs no amendment. It is true that there is a general principle that a decree passed in appeal even where it confirms the trial court's decree supersedes that decree. But where we are dealing with a decree passed in appeal from a preliminary decree and the final decree has already been passed in the meantime, the decree of the appellate Court on appeal from the preliminary decree only supersedes the preliminary decree; it cannot and does not supersede the final decree which was not taken in appeal.
Therefore, if the decree in appeal from the preliminary decree confirms it in toto, the final decree already passed needs no change and must continue to stand. It is true that if no final decree has been passed before the appeal from the preliminary https://www.mhc.tn.gov.in/judis/ 12/17 S.A.No.57 of 2003 decree is decided, the decree-holder gets three years from the date of the decree in appeal from the preliminary decree to apply for a final decree. That, however, is a question of limitation and Courts have held that in such a case three years run from the date of the decree in appeal from the preliminary decree in order apparently not to compel the decree-holder to apply for a final decree if he does not wish to do so and wants to await the result of the appeal from the preliminary decree. But if the decree- holder does not wish to await the result of the appeal from the preliminary decree, he can ask for a final decree in the meantime, and if the preliminary decree is confirmed in toto the final decree will need no change and can be executed as it stands. The decree-holder in such a case need not apply for a fresh final decree and can execute the final decree already passed in the meantime. In such cases, where a final decree has been passed in the meantime while an appeal from the preliminary decree is pending, it is well to remember the observations of Rankin, C.J. In Talebali's case, ILR [1930] 57 Cal 1013; (AIR 1929 Cal 689 FB) that the existence of the final decree ought to be brought to the notice of the appellate Court in all cases and that it is the duty of the appellate Court to give directions with respect to the final decree if it considers necessary.”
10.Of-course, the learned Senior Counsel appearing for the appellant would seek to distinguish the said case by contending that the proposition has not been formulated in the manner projected by the counsel for the contesting respondents. Since I have already held that the final decree https://www.mhc.tn.gov.in/judis/ 13/17 S.A.No.57 of 2003 application filed in this case is within time in view of the amendment order made on 12.12.1979, it is not necessary to go into the alternative contention put forth by the learned counsel appearing for the contesting respondents. I, therefore, answer the second substantial question of law against the appellants.
11.The next question that arises is whether failure to bring the legal representatives of the first defendant on record would result in abatement of the entire proceedings. The learned senior counsel for the appellant placed reliance on the decision reported in AIR 1963 SC 553 for this proposition. In the case on hand, the first defendant was originally a party to the final decree proceedings. It is relevant to mention here that he did not choose to challenge the preliminary decree. He only filed an application for valuing the improvements said to have been made by him. It is beyond dispute that several attempts were made by the plaintiffs to bring the legal heirs of the first defendant on record. But then, for reasons which are not clear, the trial Court chose to dismiss those applications. It is also submitted that the legal heirs of the first defendant came forward to get themselves impleaded in the final decree proceedings and those IAs were also dismissed by the trial Court. Be that as it may, the seventh defendant/Selvamony Nadar himself filed I.A No.434/1997 for dismissing the final decree proceedings on the ground that since the legal heirs of the first defendant have not been https://www.mhc.tn.gov.in/judis/ 14/17 S.A.No.57 of 2003 brought on record, the proceedings should not be continued. This application was dismissed on 11.07.1997. It appears that Selvamani Nadar did not choose to challenge the said order. Be that as it may, the fact remains that the plaintiffs had clubbed D1 to D6 under one group and the remaining defendants under second group. Three mortgages were created on the suit property and the third mortgage was described as superior mortgage, whatever that means. The original mortgagee had died when the suit for redemption was filed. D1 to D3 were the legal representatives of the third mortgagee/superior mortgagee. D4 to D6 were the legal heirs of the previous two mortgagees. Thus, D1 to D6 fell under one group. Even if the legal heirs of the first defendant had not come on record, their interests were substantially represented by the other two respondents, namely, R2 and R3.
13.Therefore, even if I construe the decree as indivisible and joint, non-bringing of the legal heirs of D1 will not in any way vitiate the final decree that was eventually passed. I must also note that the final decree passed by the trial Court was not challenged by the legal heirs of the first defendant. It is only the 7th defendant who has filed this second appeal.
14.The learned Senior Counsel would also remark that the 7th https://www.mhc.tn.gov.in/judis/ 15/17 S.A.No.57 of 2003 defendant did not claim right in the suit property under the mortgage but set up title independently and that therefore, the suit for redemption could not have been maintained against him and only a suit for recovery of possession could have filed against him, if at all.
15.Though this contention may have some force, it is too late to advance this argument as the original appellant Selvamony Nadar was a party to the preliminary decree. The said decree was confirmed in the first appeal and also by the High Court in second appeal. Thus, the appellants are confronted with a preliminary decree for redemption that had attained finality and therefore, they can no longer refer to the defence originally taken in the preliminary decree proceedings. Therefore, I have no hesitation to answer the first substantial question of law also against the appellants herein. The second appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
16.06.2021 Internet : Yes/No Index : Yes/No rmi To
1.The Subordinate Judge, Kuzhithurai.
2.The First Additional District Munsif, Kuzhithurai. https://www.mhc.tn.gov.in/judis/ 16/17 S.A.No.57 of 2003
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
G.R.SWAMINATHAN, J.
rmi Judgment made in S.A.No.57 of 2003 and C.M.P.(MD)Nos.3677, 3679, 3680, 3681, 3682, 3683, 3684, 3685 & 3686 of 2021 16.06.2021 https://www.mhc.tn.gov.in/judis/ 17/17