KUTTAN NARAYANAN Vs. BENNY SASI

JUDGEMENT

(1.) Common petitioners in the Writ Petition and Revision are the plaintiffs in a suit for redemption. A preliminary decree was passed allowing the plaintiffs to redeem the mortgage property on payment of the mortgage money applying for passing a final decree within a period of two months. Value of improvements claimed by the defendants was relegated for consideration in the final decree proceedings. That preliminary decree was passed on 23.2.1995. Plaintiffs did not deposit the mortgage money and move for passing final decree within the period specified. Much later, after depositing mortgage money, they moved two applications, one for passing final decree and the other for condoning the delay in applying for passing final decree. Those two applications were dismissed by the learned Munsiff under the Common Order dated 28.2.2005. The revision is against the dismissal of the application for passing the final decree, and the Writ Petition against the dismissal of the application for condoning delay. Some factual aspects involved in the case have to be taken notice beforehand. Property sought to be redeemed in the suit was under a mortgage of the year 1961, which was taken assignment by the defendants in 1963. Period of the mortgage fixed was seven years. Suit was filed within time for redemption of the mortgage. Preliminary decree in the suit was passed on 23.2.1995 with direction to deposit the mortgage price and move for passing final decree within a period of two months. Mortgage money was deposited only on 29.10.2004, and the next day the two applications, one for passing final decree and the other for condoning delay were filed. By the time the mortgage money was deposited and the aforesaid applications were moved the mortgage sought to be redeemed under the preliminary decree ceased to subsist and as such the aforesaid applications were not entertainable was the conclusion formed by learned Munsiff to dismiss the applications of plaintiffs.

(2.) Learned counsel for plaintiffs urging that after passing of preliminary decree in a suit for redemption no time limit for deposit of the mortgage price for passing of final decree is applicable assailed the Order of the learned Munsiff as unsustainable. Reliance is placed on Govindan Nair v. Abraham, 2002 3 KerLT 630 and also Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda, 2003 2 KerLT 45(C. No. 58) to contend that for preparation of final decree the time limit is within a period of three years from the date of deposit, and for making deposit of mortgage money in terms of the preliminary decree, there is no time limit at all. Learned counsel argued that deposit made and application moved for passing a final decree, within, three years from such deposit ignoring the petition moved for condoning delay in filing the application, which was not required, was sufficient to pass final decree in the suit. Learned counsel contended that once a right to redeem is recognized and declared under the preliminary decree passed by the court in the case of an usufructuary mortgage where the mortgagee has no right to move for foreclosure or sale of the mortgage security to realise the mortgage debt before passing of the final decree, deposit of mortgage price under the preliminary decree was not made by the mortgagor within the time fixed is of no significance and that does not affect his right to make the deposit and move an application for passing a final decree. Once a mortgagee ever a mortgagee, according to counsel, crystalises and emphatically restricts the limit within which a mortgagee could set up any right over the mortgage security. He can at best claim the mortgage price, that alone, with value of improvements, if any, made by him subject to restrictive covenants under the mortgage deed and a usufructuary mortgagee after passing of a preliminary decree allowing redemption of the mortgage cannot contend that right to redeem the mortgage has become extinguished by efflux of time, submits the counsel.

(3.) Per contra learned counsel appearing for respondents contended that deposit made after the mortgage ceased to subsist cannot be accepted, and, passing of final decree accepting such deposit in continuation of the preliminary decree passed would not arise. Right to redeem a mortgage subsists only so long as the mortgage remain unextinguished, and passing of a preliminary decree in a suit for redemption filed by the mortgagor would not enable him to get indefinite period of time for deposit of the mortgage price after passing of the preliminary decree, is the submission of the learned counsel. If the time fixed under the preliminary decree is over and it is not extended by the court on sufficient cause being shown by the mortgagor for non deposit within the time fixed, and, by that time if mortgage had extinguished and irredeemable the mortgagor can no longer claim any right to deposit the mortgage price and move for passing final decree, is the further submission of the counsel. There is no merit in the challenges raised against the Common Order passed by the learned Munsiff declining to condone the delay and also to entertain the application for passing the final decree in the suit, is the submission of the learned counsel.