Karnataka High Court
Kashinath Choudhary vs Savithramma on 23 February, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 11267 OF 2017(GM-CPC)
C/W
WRIT PETITION NOS.13145/2016 & 4414/2019
IN WP NO.11267/2017
BETWEEN:
KASHINATH CHOUDHARY
S/O BYADAGI GANGADHARAPPA CHOUDHARY
AGED ABOUT 65 YEARS,
R/AT TILAK ROAD, SAGAR,
SHIVAMOGA DISTRICT-577 401
...PETITIONER
(BY SRI P.P.HEGDE, SR.COUNSEL FOR
Ms.RACHITA RAJASHEKAR, ADVOCATE)
AND:
1. SMT. SAVITHRAMMA
W/O K MUKUNDAPPA,
AGED ABOUT 67 YEARS,
R/AT JAI BHARATH RICE AND FLOUR MILLS,
NAGARESHWARA TRADERS, HAKKALU,
SORABA TOWN-577429
(DELETED VIDE ORDER DATED 29.03.2019)
2. SRI GOVINDA
S/O K MUKUNDAPPA,
2
AGED ABOUT 47 YEARS,
R/AT JAI BHARATHI RICE AND FLOUR MILLS,
NAGARESHWARA TRADERS, HAKKALU,
SORABA TOWN-577429
3. SRI DATTATREYA
S/O K MUKUNDAPPA,
AGED ABOUT 45 YEARS,
R/AT JAI BHARATHI RICE AND FLOUR MILLS,
NAGARESHWARA TRADERS, HAKKALU,
SORABA TOWN-577429
4. SMT. SUMA
D/O K MUKUNDAPPA,
AGED ABOUT 37 YEARS,
R/AT JAI BHARATHI RICE AND FLOUR MILLS,
NAGARESHWARA TRADERS, HAKKALU,
SORABA TOWN-577429
5. SMT. VANI
D/O K MUKUNDAPPA,
AGED ABOUT 67 YEARS,
R/AT JAI BHARATHI RICE AND FLOUR MILLS,
NAGARESHWARA TRADERS, HAKKALU,
SORABA TOWN-577429
6. SRI MOHNA SHET
SON OF KESHAVA SHET,
AGED ABOUT 61 YEARS,
RESIDING AT NAVARATHNA JEWELLERS,
TILAK ROAD, SAGAR-577401
7. SRI SRIDHARA GUPTA
SON OF SHESHAPPA,
AGED ABOUT 65 YEARS,
NAGESHWARA TRADERS,
TILAK ROAD, SAGAR-577401
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8. SRI KASHINATH
SON OF KESHAVA SHET,
AGED ABOUT 59 YEARS,
TILAK ROAD, SAGAR-577401
(RESPONDENT NOS.6, 7 & 8 ARE DELETED
VIDE ORDER DATED : 29/3/2019)
...RESPONDENTS
(BY SRI.HARISH KUMAR M S, ADVOCATE FOR R2-5;
V/O DTD 29/03/2019, R1 & R6 TO R8 ARE DELETED)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE AND QUASH THE
ORDER DATED 07.01.2017 ON I.A.NO.12 AND I.A.NO.13 PASSED
BY THE PRINCIPAL CIVIL JUDGE AND JMFC AT SAGAR, IN
EXECUTION PETITION IN EX.P.45/2011 AND ETC.,
IN WP NO.13145/2016
BETWEEN:
B KASHINATH CHOUDHARY
S/O BYADAGI GANGADHARAPPA CHODHARY
AGED ABOUT 65 YEARS
TILAK ROAD, SAGAR-5775201
LR OF RATHNAMMA
SHOWN AS JD IN EX.PETN.45/2011
AND HAS FILED RA.34/2013.
...PETITIONER
(BY SRI.P.P.HEGDE, SR.COUNSEL FOR
MS.RACHITA RAJASHEKAR, ADVOCATE)
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AND:
1. SMT SAVITHRAMMA
W/O K MUKUNDAPPA
AGED 62 YEARS
2. GOVINDA
S/O K MUKUNDAPPA
AGED ABOUT 40 YEARS
3. DATTATREYA
S/O K MUKUNDAPPA
AGED ABOUT 38 YEARS
4. SMT. SUMA
D/O K MUKUNDAPPA
AGED ABOUT 30 YEARS
5. SMT. VANI K
D/O K MUKUNDAPPA
AGED ABOUT 28 YEARS
ALL ARE RESIDENTS OF
JAYBHARATH RICE AND FLOUR MILLS
HOSPETE HAKKALU
SORABA TOWN, SHIVAMOGGA-577429
6. SRI MOHAN SHET
S/O KESHAVA SHET
AGED ABOUT 61 YEARS
R/O TILAK ROAD, SAGAR-577201
7. SRIDHAR GUPTA
S/O SHESHAPPA
AGED ABOUT 65 YEARS
NAGARESHWARA TRADERS
TILAK ROAD, SAGAR-577201
5
8. SRI KASHINATHA
S/O KESHAVA SHET
AGED ABOUT 59 YEARS
R/O TILAK ROAD, SAGAR - 577201
...RESPONDENTS
(BY SRI.HARISH KUMAR.M.S, ADVOCATE FOR R2 TO R5;
V/O DTD: 02.07.2019 NOTICE TO R1, R6 TO R8 D/W)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE JUDGMENT
DTD.11.03.2013 MADE IN EXECUTION CASE NO.45/2011 BY
PRINCIPAL CIVIL JUDGE SAGAR (VIDE ANNEX-D) AND ALSO THE
JUDGMENT DTD.22.11.2014 MADE IN APPEAL NO.34/2013 BY
SENIOR CIVIL JUDGE, SAGAR VIDE ANNEX-E AND ETC.,
IN WP NO.4414/2019
BETWEEN:
B. RAMANATH CHOWDHARY
SON OF LATE BYDAGI GANGADHARAPPA,
AGED ABOUT 69 YEARS,
RESIDING AT TILAK NAGAR,
SAGARA, SHIVAMOGGA DISTRICT-577 201.
...PETITIONER
(BY SRI.NAGARAJ JAIN, ADVOCATE)
AND:
1. SRI. GOVINDA
SON OF K. MUKUNDAPPA,
AGED ABOUT 47 YEARS
2. SRI. DATTATREYA
SON OF K. MUKUNDAPPA,
AGED ABOUT 40 YEARS
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3. SMT. SUMA
D/O. LATE K. MUKUNDAPPA,
AGED ABOUT 37 YEARS
4. SMT. VANI
D/O. LATE K. MUKUNDAPPA,
AGED ABOUT 35 YEARS,
ALL RESPONDENT NOS.1 TO 4 ARE RESIDENTS OF
JAI BHARATHI RICE AND FLOUR MILL,
HOSPETE HAKKALU, SORABA TOWN,
SHIVAMOGGA DISTRICT-577 429.
5. B. KASHINATH CHOWDHARY
S/O. BYDAGI GANGADHARAPPA CHOWDHARY,
AGED ABOUT 74 YEARS,
RESIDING AT TILAKA NAGAR,
SAGAR TOWN, SHIVAMOGGA DISTRICT-577 201.
...RESPONDENTS
(BY SRI.HARISH KUMAR M S, ADVOCATE FOR R1-4;
SRI.VASANTH.B.H, ADVOCATE FOR R5)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH OR ASIDE THE
IMPUGNED ORDER DTD 10.09.2018 VIDE ANNX-A PASSED BY THE
LEARNED PRINCIPAL CIVIL JUDGE & JMFC, SAGARA IN
EX.CASE.NO.45/2011 ON IA NO.XVIII AND CONSEQUENTLY ALLOW
THE SAID IA NO.XVIII AS PRAYED THEREIN.
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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 21.06.2022, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These captioned writ petitions are filed by the judgment debtors questioning the orders passed in Ex.P.No.45/2011. W.P.No.11267/2017 is filed questioning the order passed on I.A.Nos.12 and 13 in Ex.P.No.45/2011, whereas W.P.No.13145/2016 is filed questioning the order passed on 11.03.2013 in Ex.P.No.45/2011 and W.P.No.4414/2019 is filed questioning the order dated 10.09.2018 passed on I.A.No.XVIII in Ex.P.No.45/2011.
2. The facts leading to the case are as under:
a) The father of respondent Nos.2 to 5 filed suit for redemption of mortgage deed against the present petitioners mother namely Smt. Rathnamma and other three persons who were sub-tenants under Rathnamma in O.S.No.28/1986. The Court, after full fledged trial, was pleased to decree the suit by 8 judgment and decree dated 14.06.1993 and the petitioners mother Rathnamma was directed to receive the mortgage amount of Rs.6,235/- and redeem the property and handover possession to the father of respondent Nos.2 to 5. The respondent Nos.2 to 5 claimed that decree holders deposited a sum of Rs.6,235/- on 14.07.1993. Rathnamma i.e., petitioners mother and two other defendants preferred appeal questioning the decree for redemption of mortgage in R.A.No.64/1993. During the pendency of appeal, the petitioners mother died leaving behind five sons and three daughters. However, petitioner in W.P.No.11267/2017 namely Kashinath Chowdary filed an application to come on record as legal heir of Rathnamma. An application was filed by the petitioner-Kashinath Chowdary herein who is one of the son of Rathnamma claiming that he is in possession of suit schedule property and other four brothers are residing separately. The said application was allowed and he was 9 permitted to prosecute the appeal along with other two defendants.
b) The Appellate Court dismissed the appeal by judgment and decree dated 18.08.2011. The respondent Nos.1 to 5 based on decree passed in O.S.No.28/1986 confirmed in R.A.No.45/2007 filed execution petition in Ex.P.No.45/2011.
Meanwhile, the petitioner-Kashinath Chowdary preferred regular second appeal in RSA.No.2695/2011. This Court dismissed the second appeal by judgment and decree dated 30.07.2012. The present petitioner contested the execution proceedings by filing objections. The present petitioner herein claimed that decree holders have not deposited the mortgage amount within one month. The present petitioner also claimed that all the legal heirs of deceased Rathnamma are not brought on record and therefore, cannot be enforced.
c) The present petitioner's brother by name B.Ramanath Chowdhary filed third party application by invoking Rule 97 of Order XXI. The said application was resisted by the 10 respondent Nos.1 to 5/decree holders. The Executing Court after hearing both the parties rejected the application filed under Rule 97 of Order XXI. The Executing Court after considering the objections filed by the petitioner herein allowed the Execution Petition by order dated 11.03.2013 and directed the judgment debtor to execute redemption of mortgage deed and to handover vacant possession within seven days.
d) The petitioner in W.P.No.11267/2017 feeling aggrieved by the order dated 11.03.2013 preferred appeal in R.A.No.34/2013. The Appellate Court dismissed the appeal filed in R.A.No.34/2013, while regular appeal in R.A.No.37/2013 filed by the petitioner's brother namely B.Ramanath Chowdhary was also dismissed thereby confirming the order dated 11.03.2013 of the Executing Court. The petitioners feeling aggrieved by the judgment rendered in R.A.No.34/2013 preferred writ petition in W.P.Nos.4967- 68/2015. The said petition was withdrawn reserving liberty to 11 file execution second appeal. This Court has dismissed the execution second appeal reserving liberty to initiate appropriate proceedings.
e) After dismissal of execution second appeal, petitioner filed application seeking permission to file additional objections to the execution petition and along with the said application, petitioner also filed additional statement of objections. The petitioner also filed one more application under Section 47. The Executing Court after hearing both the parties on I.A.Nos.12 and 13, rejected both the applications which was again questioned by the petitioner in M.A.No.3/2017. One of the brother of petitioner namely B.G.Ramanath Chowdhary (petitioner in W.P.No.4414/2019) whose third party application was rejected again filed application in I.A.No.18 under Order I Rule 10(2) of CPC seeking leave of the Court to come on record and contest the execution proceedings. The third party applicant having come on record filed application under Section 47 seeking dismissal of the Execution petition. 12 The Executing Court after hearing both the parties dismissed the application filed by third party applicant filed under Section 47 of CPC.
f) The Executing Court after considering the draft redemption deed and objections filed by the judgment debtor, over-ruled the objections and approved the draft redemption deed and Court Commissioner was appointed by order dated 11.01.2019 to execute the redemption of mortgage deed which came to be registered in the office of sub-Registrar on 11.01.2019. The petitioner in W.P.No.11267/2017 preferred Misc.Appeal.No.2/2019 questioning the registration of mortgage deed while one of the brother of petitioner herein feeling aggrieved by the rejection of his application filed under Section 47 dated 10.09.2018 preferred writ petition in W.P.No.4414/2019.
g) The petitioner herein namely B.Kashinath Chowdhary has filed W.P.No.13145/2016 questioning the order dated 11.03.2013 passed in Ex.P.No.45/2011 directing the judgment 13 debtors to execute redemption of mortgage deed and to handover vacant possession within seven days.
h) The present petitioner in W.P.No.11267/2017 has filed one more writ petition in W.P No.13145/2016 questioning the orders passed by the Executing Court on I.A.Nos.12 and 13 in W.P.No.11267/2017, while the brother of the petitioner who had filed third party application which was rejected and was permitted to come on record by allowing the impleading application has filed W.P.No.4414/2019 questioning the order passed by the Executing Court on an application filed under Section 47 of CPC.
3. Shri P.P.Hegde, learned Senior Counsel reiterating the grounds urged in all the three petitions would vehemently argue and contend that the decree is not enforceable as the mortgage amount was not deposited by the decree holders within the time stipulated by the Court in O.S.No.28/1986. He would vehemently argue and contend that if decree holders had delayed the payment and have failed to deposit the 14 mortgage amount within stipulated period, the decree becomes unenforceable. He would further point out that the decree passed in O.S.No.28/1986 was a conditional decree and therefore, the decree under execution automatically becomes unenforceable on account of non-compliance of the conditional decree passed by the Court below.
4. Arguing vehemently that decree is not executable, he would contend that the time fixed by the Court while drawing a decree in O.S.No.28/1986 would render the decree un-executable. Referring to the operative portion of the said judgment, he would contend that when judgment stipulates time for making the deposit and in absence of application seeking extension of time, the delay of even one day cannot be condoned. Therefore, the present decree is not executable. He would further vehemently argue and contend that the law laid down by the Co-ordinate Bench of this Court in the case of K.S.Jayavani vs. C.Narayanaswamy1 is not a good law and 1 2010 SCC Online Kar 5523 15 the principles laid down in the above said judgment being contrary to Rule 8 of Order XXXIV renders the judgment per incuriam and no reliance can be placed on the said judgment. Placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of Mohd. Abdul Khader Mohd. Kastim and Another vs. Pareethij Kunju Sayed Ahammed and Others2, he would contend that on account of non-deposit of mortgage amount, the decree had become unenforceable and therefore, decree holders must suffer for his negligence. Placing reliance on the said judgment, he would contend that the decree stipulating a specific time limit on account of default by decree holders, the same cannot be executed.
5. The second limb of arguments canvassed by the learned Senior Counsel is that based on preliminary decree passed in O.S.No.28/1986, decree holders straight away could not have maintained the execution proceedings. He would 2 (1996) 11 SCC 83 16 contend that in a suit for redemption of mortgage, the adjudication leads to only drawing up of preliminary decree and therefore, further adjudication is required in final decree proceedings. Placing reliance on the dictum laid down by the Hon'ble Apex Court in the case of Venkata Reddy and Others vs. Pethi Reddy3, he would contend that in absence of final decree, the present decree passed in O.S.No.28/1986 is not executable. Arguing in the same vein, he would further place reliance on the judgment rendered by this Court in the case of Puttananjamma and Another vs. P.M.Channabasavanna and Others4. Referring to the said principles, he would contend that in a suit for redemption of mortgage, the preliminary decree only declares the amount due to the mortgagor which further requires final adjudication in final decree proceedings.
6. Questioning the decree passed in O.S.No.28/1986, he would contend that Court exceeded its jurisdiction in 3 AIR 1963 SC 992 4 AIR 1967 Mys 41 17 straight away drawing a final decree. Referring to Rule 7 of Order XXXIV, he would contend that in a suit for redemption of mortgage, Court should always first draw preliminary decree and thereby relegate the parties to initiate final decree proceedings. Placing reliance on the Apex Court judgment rendered in the case of Jamila Begum vs. Shami Mohd. and Another5, he would vehemently argue and contend that there has to be strict compliance of the procedure in terms of Rule 7 of Order XXXIV before passing a decree for redemption of mortgage.
7. Learned Senior Counsel would conclude his arguments by placing reliance on the judgment in Auto Cars vs. Trimurti Cargo Movers Pvt. Ltd. and Ors.6. Referring to the principles in the judgment cited supra, he would contend that when legislature provides for a particular thing to be done in a prescribed manner, then such prescribed procedure must be mandatorily followed. Therefore, he would 5 (2019) 2 SCC 727 6 (2018) 15 SCC 166 18 further place reliance on the judgment rendered by the Hon'ble Apex Court in the case of Fibre Boards Private Limited, Bangalore vs. Commissioner of Income Tax, Bangalore7. Referring to the said decision, he would contend that the judgment rendered in ignorance of statutory provisions or prior binding precedent is per incuriam.
8. Per contra, learned counsel appearing for the decree holders repelling the contentions canvassed by the learned Senior Counsel would contend that this is a classic case of abuse of process. The father of respondent Nos.2 to 5 filed a suit in O.S.No.28/1986 seeking redemption. This was decreed on 14.06.1993. The present petitioner and his brother have used all possible means to defer the redemption and consequent handing over of possession. Referring to the appeals and writs filed by the petitioner and his brother, he would point out that all the objections raised by the petitioner and his brother have been over-ruled time to time. The 7 (2015) 10 SCC 333 19 petitioner's brother who had filed third party application which came to be rejected by the trial Court, preferred appeal in R.A.No.37/2013. The said appeal was also dismissed. Though the third party application was rejected and attained finality in an appeal on account of order passed by the Appellate Court in R.A.No.37/2013, the petitioner's brother again came up with an impleading application which was allowed. Having come on record, petitioner's brother namely B.Ramanath Chowdhary again filed an application under Section 47 seeking dismissal of the execution petition.
9. Now coming to the objections raised by the petitioner in W.P.No.11267/2017, he would contend that the petitioner's contention that all the legal heirs of deceased mortgagee namely Rathnamma are not brought on record has no legs to stand. Taking this Court through the judgment rendered in R.A.No.45/2007, he would bring to the notice of this Court that petitioner alone filed LR application by taking a specific contention that he alone is residing along with his 20 mother in the mortgaged property and since his other brothers and sisters are residing separately, he alone sought leave of the Court to prosecute the appeal filed by his mother along with sub-tenants who were arrayed as co-appellants. So far as objections raised by the learned Senior Counsel in regard to failure on the part of decree holders in not depositing the mortgaged amount within the stipulated time, he would contend that the decree came to be passed on 14.06.1993, while amount came to be deposited on 14.07.1993 which is within the stipulated time. Therefore, both the grounds urged in W.P.No.13145/2016 are found to be frivolous and therefore, he would contend that the writ is liable to be dismissed by imposing exemplary cost.
10. Raising strong objections to the maintainability of writ petition filed by the petitioner's brother in W.P.No.4414/2019, he would contend that his claim under Order XXI Rule 97 was rejected and confirmed by the Appellate Court in R.A.No.37/2013. Therefore, he would 21 contend that the order under challenge in W.P.No.4414/2019 does not suffer from serious infirmities and therefore, writ is liable to be dismissed. He would further point out that the orders passed by the Executing Court on I.A.Nos.12 and 13 which are subject matter of W.P.No.11267/2017 would also not warrant any interference at the hands of this Court.
11. Referring to the order dated 11.03.2013, he would contend that the Executing Court has dealt with the objections filed by the petitioner in W.P.No.13145/2016 and after hearing the objections, the Executing Court has proceeded to over-rule the objections and by order dated 11.03.2013 directed the judgment debtors to execute redemption of mortgage deed and handover vacant possession within seven days. The said order was questioned in R.A.No.34/2013 which was also dismissed. Therefore, he would point out that if the order passed by the Executing Court on 11.03.2013 has attained finality, the judgment debtors cannot re-litigate and keep filing application under Section 47 seeking adjudication of their 22 rights. On these set of grounds, he would contend that all these writ petitions are devoid of merits and therefore, same are liable to be dismissed.
Findings in W.P.No.13145/2016
12. In this writ petition, the judgment debtors are assailing the order of the Executing Court in over-ruling the objections raised by the judgment debtors that all the legal heirs of deceased Rathnamma are not made party. The second objection raised in this writ petition is that since decree holders have failed to deposit the amount within one month, they are not entitled to enforce the decree passed in O.S.No.28/1986. The Executing Court referring to Section 9 of the General Clause Act has come to conclusion that if first day is excluded, then the deposit made on 14.07.1993 is well within one month and therefore, there is compliance. The second ground that all the legal heirs of Rathnamma are not arrayed in the execution proceedings is also rejected by the Executing Court. At para 8 of the order under challenge, the 23 Executing Court has taken note of the fact that the petitioner namely Kashinath Chowdhary alone filed an application to come on record in R.A.No.45/2007, wherein the decree passed in O.S.No.28/1986 seeking redemption of mortgage was under
challenge.
13. I have given my anxious consideration to the grounds urged in the writ petition. Insofar as deposit within the stipulated time is concerned, it is clearly evident that the decree holders have made payment within one month. Be that as it may, even if the mortgaged amount was not deposited and there is delay of one day, that in itself will not take away the right of the mortgagor to seek redemption of mortgage. Under Limitation Act, there is no restriction imposing limitation to seek redemption of mortgage. The Hon'ble Apex Court in the case of Prabhakaran & Others vs. M.Azhagiri Pillai8 clearly contemplates that a mortgagor can seek redemption within 30 years. It is equally trite law that 8 (2006) 4 SCC 484 24 there cannot be any clog on the right to seek redemption and any provisions in the mortgage deed which tries to infringe or put a clog on the right to redemption would be void from the beginning of inception of that particular clause. The Hon'ble Apex Court in the case of K.Vilasini vs. Edwin Periera9 held that statutory right of the mortgagor can be taken away only under two instances. Firstly, through the act of the parties and secondly, through a decree by the Court. Therefore, right to seek redemption subsists unless mortgagee under Section 67 of the Transfer of Property Act seeks for foreclosure. Even if there is a delay of failure to deposit the mortgage amount as stipulated by the Court, that will not automatically extinguish the mortgagor's right to seek redemption.
14. The Hon'ble Apex Court in the latest judgment rendered in the case of Ram Dattan (Dead) by LRs vs. Devi Ram10, clearly made a distinction between redemption under other types of mortgages and usufructuary mortgages. 9 (2008) SCC 349 10 Civil Appeal No.1541 of 2011 Dtd: 07.10.2021 25 The Hon'ble Apex Court while interpreting Section 60 of Transfer of Property Act held that mortgagor's right to seek redemption in case of simple mortgage commences from the day mortgage money becomes due. The Hon'ble Apex Court further held that there is a clear distinction when it comes to usufructurary mortgage where the right to recover possession is dealt exclusively under Section 62 of the Transfer of Property Act and such right commences on payment of mortgage money.
15. In the light of the principles laid down by the Hon'ble Apex Court in the judgment cited supra, usufructuary mortgage cannot be treated on par with other types of mortgage. The right of usufructuary mortgage is not only an equitable right, but it has a statutory recognition under Section 62 of Transfer of Property Act. The Courts have time and again held that there is no principle of law on which this right can be defeated and any contrary view, which does not take into account the special right of usufructuary mortgagor 26 under Section 62 of TP Act has to be held to be erroneous. However, this Court having examined the date on which decree came to be passed and the date on which mortgaged money was tendered, excluding the date on which decree was passed is of the view that mortgage money deposited by mortgagor is well within time.
16. The Hon'ble Apex Court in the case of Shankar Sakharam Kenjale vs. Narayan Krishna Gade11, while elaborating the principles relating to mortgage held that 'once a mortgage, always a mortgage' and the right to redemption given to the mortgagor would come to end only through the process of law. In the present case on hand, there is no credible material placed on record which indicates that right of seeking redemption has ended and it is not their case that mortgagor is unable to pay the mortgage amount. It is equally a trite law that even if suit for foreclosure is decreed, mortgagor cannot be denied from his right to seek 11 (2010) Civil Appeal No.4594 (SC) 27 redemption. In the present case on hand, the judgment debtors have virtually abused the process of law and it is unfortunate that decree holders are pitted against multiple litigations. Therefore, I am of the view that the order under challenge is in accordance with law and would not warrant any interference.
Findings in W.P.No.11267/2017
17. In this petition, the petitioner has questioned the orders on I.A.Nos.12 and 13. I.A.No.12 was filed seeking leave to file additional objections, while I.A.No.13 was filed under Section 47 of CPC requesting the Court to dismiss the execution petition pending in Ex.P.No.45/2011. The Executing Court after hearing both the parties has rejected both the applications. Under I.A.No.12, the petitioner raised an objection that decree holders cannot enforce the decree in absence of there being a final decree proceedings. The Executing Court out-rightly rejected this claim made by the petitioner herein. The Executing Court has rejected both the 28 applications. The first contention of the petitioner that based on preliminary decree in a suit for redemption of mortgage, the decree holders cannot file execution without having recourse to final decree proceedings is found to be misconceived. In the present case on hand, the mortgage amount is definite and on perusal of the decree passed in O.S.No.28/1986, it is clearly evident that the decree holders are required to repay a sum of Rs.6,235/-. If the mortgage amount is definite, this Court is unable to understand as to how the judgment debtors can insist for a further adjudication in final decree proceedings. The contention of the petitioner that it requires further adjudication in final decree proceedings is found to be misconceived and therefore, this Court is not inclined to accede to the said argument. The petitioner and his brother have repeatedly filed applications under Section 47 of CPC even after Executing Court has passed order directing the judgment debtors to execute redemption of mortgage deed.
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18. If the petitioner in W.P.No.11267/2017 was brought on record in R.A.No.45/2007 which was filed by the petitioner's mother Rathnamma questioning the judgment and decree for redemption of mortgage in O.S.No.28/1986 and if the said appeal is heard on merits and the decree for redemption of mortgage is confirmed by the Appellate Court and by this Court in RSA.No.2695/2011, there cannot be any further adjudication at the instance of judgment debtors under Section 47 of CPC. If decree for redemption of mortgage has attained finality and the present petitioner who is one of the son of the mortgagee Rathnamma, no further question would arise for consideration which would need adjudication under Section 47 of CPC.
19. Admittedly, petitioner in W.P.No.11267/2017 and his brother in W.P.No.4414/2019 have no independent right. They are resisting this execution proceedings through their mother Rathnamma who was admittedly mortgagee in 30 possession. Therefore, this Court is of the firm view that no question for decision would arise between the parties to the execution proceedings which would invite an enquiry under Section 47 of CPC. The question raised by the petitioners on the ground that the decree is not enforceable for want of final decree proceedings does not fall within the purview of Section 47 of CPC. Therefore, consequent I.A.No.13 requesting the Court to dismiss the execution petition as execution petition is filed based on preliminary decree in O.S.No.28/1986 without initiating final decree proceedings also does not fall within the domain of Section 47 of CPC.
20. For the reasons stated supra, if the mortgaged amount which the mortgagor is liable to repay as a requisite condition to seek redemption is a definite and certain, the same would not require any further adjudication in a final decree proceedings. Therefore, writ petition is devoid of merits and is liable to be dismissed.
31Findings in W.P.No.4414/2019
21. This captioned writ petition is filed by one of the brother of the original judgment debtor Kashinath Chowdhary. The petitioner herein filed a third party application under Order 21 Rule 97 of CPC. The said application was rejected by the Executing Court on 08.02.2013. After dismissal of the third party application, the present petitioner herein claiming to be legal heir of original mortgagor Rathnamma filed an impleading application. The Executing Court though ought to have rejected this application, has allowed the impleading application. Having come on record, petitioner herein has again filed application under Section 47 and has sought for dismissal of the execution petition. The present petitioner herein has also raised similar objections by contending that in absence of final decree, the decree passed in O.S.No.28/1986 is not enforceable. Therefore, petitioner herein has also claimed that the decree holders have lost their right to apply for a final decree and therefore, execution petition is liable to 32 be dismissed as not maintainable. The Court out-rightly rejected this application. The present petitioner herein who had not opted to question the decree for redemption passed in O.S.No.28/1986 and having suffered an order on an application filed under Order 21 Rule 97, has unfortunately tried to stall the execution proceedings by filing frivolous applications.
22. In view of my findings recorded in W.P.No.11267/2017, the present writ petition is also liable to be dismissed. The Executing Court while rejecting the application filed by the petitioner has rightly recorded its finding that the issue in regard to maintainability is already decided. Therefore, the present petitioner herein and the petitioner in connected writ petition by filing repeated applications which are found to be frivolous are rightly dealt with by the Executing Court and rejected. I do not find any error in the order under challenge. Consequently, writ petition is liable to be dismissed.
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23. The present case on hand depicts a very sorry state of affairs. The decree holders have been fighting this litigation since 1986. Seeking a legal remedy by prosecuting the suit could be incredibly frustrating. The resistance and defence at the hands of the judgment debtors has been found to be totally frivolous. Though the defence set up by judgment debtors lacks merit, the decree holders are compelled to expend time, energy and financial resources to secure the fruits of the decree. The long ordeal of litigation has taken heavy toll on the decree holders and has caused significant harm to the decree holders' right. The judgment debtor in the present case on hand as well as the brother of the judgment debtor who suffered an order on a third party application have in all probability used judicial process to inflict injury on the decree holders. The present writ petitions filed by the petitioner and his brother in the connected writ petition, has itself become a tool to harm the rights of the decree holders 34 which has stood crystallized after dismissal of the regular second appeal in RSA.No.2695/2011.
24. In the present case on hand, the judgment debtors who are the petitioners cannot be allowed to go scot-free. This is a fit case to impose exemplary cost. The suit is filed in 1986 and the helpless decree holders are still struggling to get the decree executed. Therefore, I am of the view that the writ petitions are liable to be dismissed by imposing cost of Rs.50,000/- on each of the judgment debtors payable to the decree holders.
25. For the foregoing reasons, I pass the following:
ORDER The writ petitions are dismissed by imposing cost of Rs.50,000/- on each of the petitioners payable to the decree holders.
Sd/-
JUDGE CA