NARAYANARU THRIVIKRANARU Vs. V MADHAVAN POTTY

JUDGEMENT

(1.) Appellant won the cause at all the tiers in the judicial hierarchy during trial stage but the fruits of the decree which he earned thereby are still eluding him. The decree is practically rendered non-est during execution stage as the High Court upheld the contentions of the contesting respondents in disregard of the contrary findings made during trial stage. The order so passed by a learned single Judge of the High Court of Kerala is now being challenged in this appeal by special leave.

(2.) Facts, spread over to a wide range of period covering more than half a century by now, can be stated as follows:In 1943 a document (Ex. P-1) was executed styling it as "Otti and Kuzhikanam" in favour of the first respondent in respect of the suit properties. In fact those properties were outstanding on lease with the respondent before the execution of Ex. P-1. A suit for redemption of mortgage was filed by the appellant, claiming to be entitled to redeem the mortgage, on the premise that Ex. P-1 was a usufructuary mortgage. First respondent, after admitting the execution of Ex. P-1, contended that it was not meant to terminate the earlier lease arrangement and hence he continued to be a lessee of the property notwithstanding the execution of Ex. P-1. The trial Court found that first respondent was in possession of the land as mortgagee and not as lessee. On the strength of such a finding the trial Court passed a decree for redemption of the mortgage on condition that the mortgage amount and value of the improvements effected by the first respondent on the property should be paid to him.

(3.) First respondent filed a regular appeal against the said judgment before the sub-Court and that Court upheld the decree passed by the trial Court. He then filed a second appeal before the High Court of Kerala. As per the judgment dated 12-1-1967 the High Court dismissed the second appeal. Thus, the decree for redemption of the mortgage became final.