Madras High Court
Selvaraj vs Sukumaran Nair on 10 March, 2016
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.03.2016
CORAM
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P(MD)No.434 of 2016(NPD)
and
C.M.P(MD).No.1860 of 2016
Selvaraj .. Petitioner
Vs.
1.Sukumaran Nair
Chellan Nadar (died)
2.Vijayamma
3.Charles
4.Gnanamma
5.Rajmony
6.Baby
7.Sarojam
8.Rosabai .. Respondents
Prayer : This Civil Revision Petition is filed under Article 227 of the
Constitution of India,against the fair and decretal order dated 29.01.2016
passed in E.P.No.92 of 2011 in O.S.No.350 of 1979 on the file of the
Principal District Munsif Court, Kuzhithurai.
!For Petitioner : Ms.J.Anandhavalli
^For R1 :Mr.K.N.Thampi
:ORDER
This Civil Revision Petition is filed, against the fair and decretal order dated 29.01.2016 passed in E.P.No.92 of 2011 in O.S.No.350 of 1979 on the file of the Principal District Munsif Court, Kuzhithurai.
2. The petitioner herein is the eighth respondent in E.P.No.92 of 2011 and eighth defendant in the Suit in O.S.No.350 of 1979. The petitioner is the legal heir of the original first defendant Chellan Nadar. After the death of the first defendant Chellan Nadar, the respondents 4 to 9 including the petitioner were implicated as defendants 4 to 9. The first respondent filed a Suit in O.S.No.350 of 1979 for redemption of Suit property. A preliminary decree was passed on 25.04.1991. A final decree was passed on 17.12.1996 directing the first respondent to deposit a sum of Rs.89,551/- being the development charges. The petitioner and the respondents 4 to 9 filed A.S.No.59 of 1997. By the judgment and decree dated 12.12.2001, the first Appellate Court modified the amount mentioned in final decree as Rs.76,248/-. Against the said judgment and decree, the second appeal in S.A.No.601 of 2002 was filed by the respondents 4 to 9 including the petitioner. The second appeal was dismissed on 13.06.2011.
3. On 21.07.2011, the first respondent deposited a sum of Rs.76,248/- the development charges fixed by the first Appellate Court confirmed by this Court in S.A.No.601 of 2002 on 13.06.2011. After deposit, the first respondent filed E.P.No.92 of 2011 for delivery of Suit property through Court. The petitioner herein filed counter affidavit. According to the petitioner, the final decree was passed on 17.12.1996 granting time to deposit the value of development charges on or before 31.01.1997. The first respondent deposited the amount only in the year 2011. The value of improvement from 31.01.1997 is not calculated. The said development is necessary. The learned Judge considering all these facts, allowed E.P.No.92 of 2011 ordering delivery. Against the said order dated 29.01.2016, present Civil Revision Petition is filed by the petitioner/eighth respondent.
4. The learned counsel for the petitioner contended that as per the final decree dated 17.12.1996, as modified by judgment dated 12.12.2001 in A.S.No.59 of 1997, confirmed by this Court in S.A.No.601 of 2002 dated 13.06.2011, the first respondent ought to have deposited the development charges within 30 days from 13.06.2011.The first respondent did not deposit the amount within the time limit granted by the Court. The first respondent deposited the amount only on 21.07.2011. Therefore, the delivery ordered is liable to be set aside as final decree become in-executable. The learned Judge failed to see without any application for extension of time, deposit made after 30 days makes the final decree non est in the eye of law. The learned Judge ought to have seen that the mortgage amount was not deposited within the time limit stipulated in the final decree with regard to value of development. Therefore there can not be any final decree in favour of the first respondent and can not be executed.
5. The learned counsel for the petitioner relied on the following judgments:
1. K.Parameswaran Pillai (died) vs. K.Sumathi alias Jesis Jessie Jacquiline and another reported in AIR 1994 SC 191, wherein in paragraph No.6, it has been held as follows:
? 6. ---------- Therefore, it is up to the mortgagor to redeem the mortgage. Till then his liability under the mortgage continues to run on the estate. It is, therefore, clear that the limitation to file an application under O. 34, R. 8(1) to pass a final decree for redemption, other than the preliminary decree for redemption of usufructuary mortgage, starts running and continues to run its course from the date of expiry of the period fixed in the preliminary decree, unless it is stayed or suspended or the time prescribed in the preliminary decree is extended by an order of the Court. In its absence on expiry of the limitation of three years from the date fixed in the preliminary decree is expired under Art. 137 of the Schedule to Limitation Act 1963 (Art. 181 of Schedule 2 of old Act), the plaintiff is debarred to enforce the right to pass the final decree. But in the case of preliminary decree for redemption of usufructuary mortgage no limitation begins to run until deposit is made though there is a conditional preliminary decree and default was committed by the mortgagor for compliance thereof.;?
2. Achaldas Durgaji Oswal (dead) through L.R.s vs. Ramvilas Gangabisan Heda (Dead) through L. Rs and others reported in AIR 2003 SC 1017 wherein in paragraph Nos. 20 and 21, it has been held as follows:
?20. The statutory provisions, as noticed hereinbefore are required to be construed having regard to the redeeming features of usufructuary mortgage, namely, (a) there is a delivery of possession to the mortgage, (b) he is to retain possession until repayment of money and to receive rents and profits or part thereof in lieu of interest, or in payment of mortgage money, or partly in lieu of interest and partly in payment of mortgage money (c) There is redemption when the amount due is personally paid is discharged by rents or profits received (d) there is no remedy by scale of foreclosure.
21. Order XXXIV Rules 7 and 8 do not confer any right upon the usufructuary mortgagee to apply for final decree which is conferred on mortgagee on other types of mortgages. By reason of sub-rule (1) of Rule 8 of Order XXXIV, a mortgagor is entitled to make an application for final decree at any time before a final decree debarring the plaintiff from all right 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 this rule. No such application is again contemplated at the instance of the usufructuary mortgagee. By reason of sub-rule (1) of Rule 8 of Order XXXIV, a right of redemption is conferred upon the mortgagor of a usufructuary mortgage. Such a provision has been made evidently having regard to the right of redemption of a mortgagor in terms of Section 60 of the Transfer of Property Act and further having regard to the fact that a usufructuary mortgagee would be entitled to possess the property in question till a final decree of redemption is passed''.
3. Prithi Nath Singh and others vs. Suraj Ahir and others reported in AIR 1963 SC 1041,wherein in paragraph No.7, it has been held as follows:
'' 7. It is to be noted that these provisions do not. state when a mortgage ceases to be a mortgage. They simply describe the right of a mortgagor to redeem. Now, what is this right and, in what circumstances does it arise? The right arises oh the principal money, payment of which is secured by the mortgage deed, becoming due. The right entitles the mortgagor, on his paying or tendering to the mortgagee the mortgage money to ask him (i) to deliver to him the mortgage deed and other documents relating to the mortgaged property;
(ii) to deliver possession to the mortgagor, if the mortgagee is in possession; and (iii) to re-transfer the mortgaged property in accordance with the desire of the mortgagor. If the mortgagee receives the money and does not perform any of the three acts required of him to be done,, the question arises whether this non-compliance with the demands will make the mortgage continue. The provisions of the section do not say so and there appears no good reason why the mortgage should continue. If the mortgagee is not to perform these acts, the mortgagor is not to pay the amount. If, however, the mortgage money has been received by the mortgagee and thereafter he refuses to perform the acts he is bound to do, the mortgagor can enforce his right to get back the mortgage document, the possession of the mortgaged property and the reconveyance of 308that property through Court. A new right to get his demands enforced through the Court thus arises as a result of the provisions of s. 60 of the Act. ''
6. Per contra the learned counsel for the first respondent contended that the second appeal dismissed by this Court on 30.06.2011, was restored to file and the same is posted for final hearing. Against the final decree, the petitioner and respondents 4 to 9 filed A.S.No.59 of 1997. The Judgment was delivered on 12.12.2001, modifying the preliminary decree to the effect that the petitioner and respondents 4 to 9 are entitled only a sum of Rs.76,248/- towards developmental charges. In the said Judgment, no time limit was fixed. Against the said judgment, the petitioner and respondents 4 to 9 filed S.A.No.601 of 2002 before this Court. The same was dismissed for default on 13.06.2011 and the first respondent deposited the amount on 21.07.2011. There is no delay in depositing the amount, as no time limit was fixed by the first Appellate Court or by this Court. The petitioner and respondents 4 to 9 are not entitled to claim additional amount as developmental charges, after the final decree.
7. The learned counsel for the first respondent relied on the following judgments:
1. Achaldas Durgaji Oswal (dead) through L.Rs. vs. Ramvilas Gangabisan Heda (dead) through L.Rs. and others reported in AIR 2003 SC 1017 wherein in paragraph Nos. 22 and 23, it has been held as follows:
? 22. The right of redemption of mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or by act of parties.
Admittedly, in the instant case, no decree has been passed extinguishing the right of the mortgagor nor such right has come to an end by act of the parties.
23. A right for obtaining a final decree for sale or foreclosure can be exercised only on payment of such money. Such a right can be exercised at any time even before the sale is confirmed although the final decree might have been passed in the meanwhile. The mortgagee is not also entitled to receive any payment under the preliminary decree nor the mortgagor is required to make an application to recover before paying the same.?
2. K.Parameswaran Pillai (dead) vs. K.Sumathi alias Jesis Jessie Jacquiline and another reported in AIR 1994 SC 191 wherein in paragraph No.6, it has been held as follows:
?6. ........ Therefore, it is up to the mortgagor to redeem the mortgage. Till then his liability under the mortgage continues to run on the estate. It is, therefore, clear that the limitation to file an application under O. 34, R. 8(1) to pass a final decree for redemption, other than the preliminary decree for redemption of usufructuary mortgage, starts running and continues to run its course from the date of expiry of the period fixed in the preliminary decree, unless it is stayed or suspended or the time prescribed in the preliminary decree is extended by an order of the Court. In its absence on expiry of the limitation of three years from the date fixed in the preliminary decree is expired under Art. 137 of the Schedule to Limitation Act 1963 (Art. 181 of Schedule 2 of old Act), the plaintiff is debarred to enforce the right to pass the final decree. But in the case of preliminary decree for redemption of usufructuary mortgage no limitation begins to run until deposit is made though there is a conditional preliminary decree and default was committed by the mortgagor for compliance thereof.;?
3. Rajasundaram & Others vs.C.Thayamma, reported in 2013(4)LW352 wherein in paragraph No.13, it has been held as follows;
?13.A perusal of the mortgage deed, Ex.A1 dated 19.07.1957 would indicate that in the last line of the mortgage, there was a recital to the effect that the plaintiffs/appellants will also be personally held responsible in the event of their failure to pay the mortgage amount. The very inclusion of the word 'personally responsible' cannot be attributed to the effect that the permission to sell also has been given to the defendant/respondent. What was stated or what was intended by the parties to the 'otti' deed was at the expiry of the period of mortgage, the plaintiffs/appellants have to either hand over the possession of the land or pay back the mortgage amount. Therefore, it cannot be construed as an anomalous mortgage it is only an usufructuary mortgage. When it is an usufrucutory mortgage, the rules are different. It is well settled by series of decisions of this Court as well as the Hon'ble Supreme Court that in a redemption of suit even if time for deposit was fixed and default was committed in depositing the amount, still, the mortgagor is not debarred from exercising his right to redeem the mortgaged property.''
8. The learned counsel for the petitioner and the first respondent relied on judgment, in K.Kunjamma and others vs. Bhageerathy Amma Gomathy Amma and others reported in AIR 1991 KERALA 111, wherein in paragraph Nos.8 & 12 and paragraph No.9 respectively, it has been held as follows:
? 8. Can a mortgagor after getting a preliminary decree sleep over the matter for years and deposit the mortgage money at his will and pleasure and thereafter seek a final decree for redemption by filing the application contemplated in Rule 8(1) of Order 34, C.P.C. The Madras High Court in the decision referred above has taken the view that the mortgagor will have the right of paying the amount at any time. Mention is also made about the view of the Privy Council that in the case of a preliminary decree for partition the suit cannot afterwards be dismissed for non-prosecution and must be kept pending. Accordingly it was held that the same result may follow in the case of redemption suits where after a preliminary decree no action is taken by the parties. With respect I disagree. Varghese Kalliath J. observed in Laxmi and others v. Sankappa Alva and others, (ILR 1990(1) Ker 217) at p. 228 thus:
"If a plaintiff does not take any steps after a preliminary decree is passed, the court should adjourn the proceedings sine die with liberty to the parties concerned to end the torpor and suspended animation of the suit by activising it by taking appropriate proceedings."
In the case of a preliminary decree for partition the position is that the suit is adjourned sine die without fixing any time within which a petition for a final decree has to be filed and, as held in Thomas v. Bhavani Amma (1969 KLT 729), it is the duty of the Court to pass a final decree and what is called an application for a final decree is but a reminder to the court of its duties. The position in the case of a final decree in a redemption suit is entirely different. The reliefs granted by the preliminary decree are to be worked out in accordance with Rr. 7 and 8 of Order 34, C.P.C.
12. A deposit of the amount by itself is not sufficient. That has to be followed by an application for final decree as contemplated under Rule 8(1) of Order 34. Though the mortgagor is entitled to deposit the amount at any time before the right to redeem is extinguished, he has to file the application within three years of such deposit. The Madras High Court had occasion to consider this aspect in Subramaniam Chettiar and another v. Muthiah Pillai (AIR 1957 Madras 189) where it was held that the cause of action for an application arises on payment and the period of limitation prescribed for such application must be governed by Article 181 of the Limitation Act (corresponding to the present Article 137) which will be three years from the date of deposit. The application in that case was filed long after the date of deposit and as such was found to be barred by limitation. There is no reason to differ from that view The position is that Article 137 is applicable only in the case of an application filed under Rule 8( 1) of Order 34 and not in the case of deposit of amount.?
'' 9. On a reading of Rr. 7 and 8 it is apparent that the deposit of the amount has to be made before the right of redemption is lost. Even if the mortgagee is entitled to get a final decree debarring the plaintiff-mortgagor from all right to redeem the mortgaged property, such a claim has to be made within the period of limitation. Article 61 of the Limitation Act prescribes a period of 30 years to redeem or recover possession of immovable property mortgaged and time begins to run when the right to redeem or recover possession accrues. The period of limitation for foreclosure by a mortgagee is also 30 years and the starting point of limitation is the same. The deposit can be made by the mortgagor so long as the relationship of mortgagor and mortgagee subsists. It cannot be said that the relationship subsists even after the expiry of the period of limitation prescribed under Article 61 of the Limitation Act. The period of limitation is not in any way extended by the passing of the preliminary decree. The right of the mortgagee to get a final decree debarring the plaintiff from all right to redeem the property will also come to an end on the expiry of 30 years from the date on which the mortgage money has become due. The mortgagor cannot, therefore, wait for years and years and then make a deposit and file an application for a final decree. In other words, the deposit of the amount found due in before the date fixed in the preliminary decree or within the period of limitation prescribed in Article 61 of the Limitation Act viz. within 30 years from the date on which the mortgage money has become due''.
9. Heard the learned counsel appearing for the petitioner and the first respondent and perused the materials available on record.
10. From the materials on record, it is seen that the petitioner and respondents 4 to 9 filed A.S.No.59 of 1997 against the final decree. The first Appellate Court modified the final decree by reducing the developmental charges as Rs.76,248/- payable by the first respondent. In the said judgment, no time limit was fixed directing the first respondent to deposit the amount. The second appeal in S.A.No.601 of 2002 filed by the petitioner and respondents 4 to 9 was dismissed by this Court on 13.06.2011 for default. On such dismissal, the first respondent deposited Rs.76,248/-, on 21.07.2011. When no time limit is fixed for depositing the amount, the first respondent must deposit the amount within a reasonable time. In the present case, the second appeal was dismissed on 13.06.2011 and the first respondent deposited the amount on 21.07.2011. Therefore, the contention of the learned counsel for the petitioner that, there is delay in depositing the amount and the first respondent did not seek extension of time for depositing the amount and the final decree has become in-executable is untenable. In view of the facts and the consequential contention of the learned counsel for the petitioner that final decree became non est in the eye of law and in-executable is not acceptable.
11.The judgments relied on by the learned counsel for the petitioner are not applicable to the facts of the present case. Both the learned counsel for the petitioner as well as the first respondent relied on different portions in the judgement reported in AIR 2003 SC 1017 (Cited Supra). A reading of the same shows that the portion relied on by the learned counsel for the first respondent is applicable to the facts of the present case and the portion relied on by the learned counsel for the petitioner is not applicable to the facts of the present case.
12. The learned Judge has considered all these facts in proper perspective, allowed the execution petition, by giving cogent and valid reasons and granted delivery of property in question. There is no irregularity or illegality in the said order, warranting interference by this Court. Hence, this Civil Revision Petition is liable to be dismissed.
13. In the result, this Civil Revision Petition is dismissed. No Costs. Consequently, connected Miscellaneous Petition is closed.
To The Principal District Munsif, Kuzhithurai..