PADMINI Vs. BALAKRISHNAN NAIR

JUDGEMENT

(1.) The appellants are additional petitioners 2 to 4 in E.A. No. 799 of 2003 in E.P. No. 793 of 2002 in O.S. No. 318 of 1970 on the file of the Principal Munsiff's Court, Cherthala. Predecessor in interest of the appellants, namely, Haridasan had filed the above application E.A. No. 799 of 2003 under Order 21 Rule 97 and Section 151 of the Code of Civil Procedure resisting the delivery of suit property to the decree holder/the 1st respondent. Pending enquiry on the application, the petitioner Haridasan having passed away, his legal representatives, the appellants were substituted. The execution court, after enquiry, in which, the appellants and also the 1st respondent/decree holder tendered evidence, dismissed the petition. As against the dismissal of that petition, the appellants herein preferred an appeal as A.S. No. 55 of 2008, which, after reappraisal of the materials, was turned down by the learned Sub Judge, Cherthala confirming the order of the execution court. Feeling aggrieved, the petitioners have preferred this second appeal.

(2.) Notice on admission being ordered, the 1st respondent/decree holder, who alone contested the petition before the execution court, entered appearance through counsel.

(3.) I heard the counsel on both sides. Controversy arising for adjudication in the case lie within a very narrow compass. To appreciate the tenability of the objection raised by the appellants to the delivery of the decree schedule property, reference to the facts of the case, in brief, may be advantageous. The decree schedule property involved, 33.21 ares of land in Survey No. 131/3C of Panavalli Village, was, admittedly, outstanding on a mortgage with the 2nd respondent. Two suits for redemption of the mortgage were instituted with the plaintiff in each case claiming equity of redemption disputing the right of the other to redeem the property. The 1st respondent herein, who is hereinafter referred to as the 'decree holder' instituted a suit earlier in point of time as O.S. No. 318 of 1970. The other suit was instituted by one Sreenivasan, who claimed right over the mortgage property under an assignment deed executed during the pendency of the previous suit. His assignor was stated to be the donee under a gift executed by the mortgagor of the property. Suit filed by the aforesaid Sreenivasan for redemption of the mortgage property was numbered as O.S. No. 446 of 1974. After trial, a preliminary decree was passed in O.S. No. 446 of 1974 upholding the claim of the plaintiff Sreenivasan to redeem the property on deposit of the mortgage price. Suit filed by the 1st respondent herein as plaintiff, O.S. No. 318 of 1970 was dismissed. Haridasan, the predecessor of the appellants, obtained an assignment over the property from Sreenivasan, the decree holder in O.S. No. 446 of 1974 by way of a registered sale deed and moved a final decree application after getting leave of the court to do so, and, later, redeemed the property from the mortgagee depositing the mortgage price. The 1st respondent had raised objections to the final decree proceedings taken by the assignee Haridasan pointing out that the appeal period was not over and the application moved by him for obtaining copies of the decrees to prefer appeals against the decision in the two suits has not been complied with. Thereafter, the plaintiff in O.S. No. 318 of 1970, the 1st respondent herein, preferred two appeals as against the decrees passed in the aforesaid suit and also in O.S. No. 446 of 1974. The first appellate court turned down such appeals. However, in the second appeals preferred against the decisions rendered by the first appellate court, this Court reversing the decrees granted by the courts below upheld the claim of equity of redemption of the 1st respondent granting him a decree thereof in his suit, O.S. No. 318 of 1970, allowing him to redeem the property. The decree passed in O.S. No. 446 of 1974 was reversed and that suit was dismissed. In O.S. No. 318 of 1970, declaring the right of the plaintiff, the 1st respondent herein, to redeem the property, the case was remitted to assess the value of improvements payable to the mortgagee - 2nd respondent. The decrees passed by this Court, as aforesaid, in the two second appeals, had been assailed before the Apex Court by the plaintiff in O.S. No. 446 of 1974 and also the mortgagee, but, they were turned down dismissing the Special Leave Petitions. After remission of the case as aforesaid over the fixation of the value of improvements, still, there were some challenges by way of appeal before the first appellate court twice, but the assessment made by the trial court the second time was confirmed by the appellate court, and it has become final and conclusive.