UDAYAKUMAR Vs. RAJALEKSHMI

JUDGEMENT

(1.) Second appeal arises from the final decree and judgment passed in a suit for redemption namely O.S. No. 252/1974 on the file of the 3rd Additional Munsiff Court, Thiruvananthapuram.

(2.) The case has a long chequered career and for the purpose of disposal of this appeal, it is unnecessary to advert to the factual basis of the claim raised by the Plaintiff or the contentions advanced by the contesting Defendants resisting the relief canvassed, and also the disputes, which emanated therefrom for adjudication before the court Suffix to state, the above suit, which was one for redemption, was jointly tried along with Anr. suit, O.S. No. 593/1974, in which the Plaintiff therein also set up a claim for redemption over the same property. Subject-matter involved in both the suits is fifteen cents of land outstanding on a mortgage. The Plaintiffs in the respective suits set up rival claims on the basis of their status as legal heirs of the mortgagor, who, had executed the mortgage deed over the property which was sought to be redeemed. During the course of the litigation, decrees were passed in the suits in favour of one or the other Plaintiff, with appeals preferred thereto by the aggrieved party, and later such appeals disposed, setting aside the previous judgment of the trial court and remitting the case for fresh consideration and disposal on merits. Since those disputes have been settled and sealed with finality by the judgment rendered by the apex court in C.A. No. 3115/1989 dated 11-2-1999, specific reference to the decrees granted from time to time or its reversal by the superior courts is quite unnecessary as indicated earlier for disposal of this appeal. However, after a preliminary decree in favour of the predecessor of the Appellants, the Plaintiff in O.S. No. 593/1974, was passed by the trial court, after the case being remanded to that court setting aside its previous judgment, and the decree so granted confirmed by the lower appellate court, while second appeals against the decisions rendered in the two suits were pending consideration before this Court at the instance of the Plaintiff in O.S. No. 252/1974, the predecessor of the present Appellants moved for passing of a final decree and that decree being passed, ultimately, the mortgaged property was redeemed in execution and delivery of the property effected in his favour. But the second appeals arising from the decree dismissing O.S. No. 252/1974, and preliminary decree passed in 593/1974 were ultimately decided in favour of the Plaintiff decreeing his suit O.S. No. 252/1974, and the other, O.S. No. 593/1974, reversing the judgments of the courts below, was dismissed. As against the common judgment rendered in the two second appeals, the predecessor of the present Appellants preferred the above stated civil appeals before the apex court and those appeals as already stated were dismissed. Now, the question posed for consideration in the present appeal is the validity, legality and correctness of the final decree passed in favour of the Plaintiff in O.S. No. 252/1974 by the trial court after a preliminary decree was passed in the second appeal as aforesaid, which was later confirmed by the decision of the apex court. Pending the second appeal, the Plaintiff in O.S. No. 593/1974, by virtue of the decree passed by the lower courts allowing redemption of the mortgage property in his favour, as already stated, had redeemed that property. So much so, when the Plaintiff in O.S. No. 252/1974 applied for passing of the final decree, it was contended by the present Appellants that since the property had already been redeemed by the decree passed earlier in O.S. No. 593/1974 nothing more survived for consideration and so much so, no decree as sought for could be passed. Negativing that contention, the trial court has passed the final decree in favour of the present Respondents 1 to 6, who claim under the Plaintiffs in the above suit (O.S. No. 252/1974). That decree was confirmed by the lower appellate court negativing the challenges raised in appeal by the present Appellants. Concurrent decision so rendered by the courts below that despite redemption of the property in execution of a decree by the present Appellants in O.S. No. 593/1974, still, the Respondents 1 to 6, the successors, in interest of O.S. No. 252/1974 are entitled to get a final decree passed in their favour for redeeming the property, is challenged in this second appeal.

(3.) I heard the Counsel on both sides. In the suit for redemption (O.S. No. 593/1974), after deposit of the mortgage price, through the court the property had already been delivered over to the Appellants and hence passing of a final decree empowering the Respondents 1 to 6 to redeem such property when no . more mortgage subsisted for redemption is wholly irregular and unsustainable is the submission of the learned Counsel for the Appellants. On the other hand, the learned Counsel appearing for the Respondents relying on Sections 87 and 90 of the Indian Trusts Act, 1882, contended that in the given facts of the case, at best, the redemption of the mortgage property by the Appellants on the basis of the decree passed in O.S. No. 593/1974 by the court, which, later, was set aside, would entitle such Appellants to retain such property only as a security and on behalf of the successful party, in whose favour, after final adjudication, a decree for redemption was passed by the court. The position of the Appellants, at the most, is only that of a debtor who got the security in his favour from the mortgagee and he can retain it only for the benefit of the creditor, the successful party in the suit, the Respondents 1 to 6, who claim under the Plaintiffs in O.S. No. 252/1974, in whose favour a decree for redemption was finally granted by the court, submits the Counsel.