KARTHIAYANI AMMA Vs. KESAVAN

JUDGEMENT

(1.) THE 6th defendant who is the appellant, sued in O. S. 226 of 1120 on the strength of a melotti Ext. D and obtained a decree for redemption of a mortgage. THE plaintiffs, of whom the second plaintiff is the respondent in this appeal, sued in O. S. 234 of 1120 to redeem both the melotti and the prior mortgage. THE decree as finally passed in O. S. 234 of 1120 directed payment by the second plaintiff, of additional court-fee before executing the decree and the concluding part of the decree was in these terms: THE decree also provided, that in case the 2nd plaintiff is not executing the decree, the 6th defendant might put her decree in execution. According to the plaintiffs, they had already obtained delivery of possession of the property in pursuance of an earlier decree in the same suit which was afterwards set aside, and have been in possession at the time the decree was passed finally. THE second plaintiff did not pay the court-fee as directed. THE 6th defendant executed her decree and according to her came into possession and still continues to be in possession. Afterwards, the 2nd plaintiff filed execution petition 93 of 1958, alleging that while the plaintiff had been in possession, the 6th defendant took possession unauthorisedly on the 1st April 1957, and praying that the property might be delivered to him. THE execution court allowed the second plaintiff to make the deposit of court-fee, and permitted him to execute the decree. An appeal which was taken against the order by the 6th defendant was dismissed.

(2.) IN second appeal against the above, the principal point taken for the 6th defendant was, that the executing court had no jurisdiction to extend the time fixed by the court which passed the decree, for the payment of court-fee. The courts below appear to have applied the provisions of S. 148 and 149 of the Civil Procedure Code for extending the time and there is good deal of force in the contention of the learned counsel for the 6th defendant, that according to these provisions, it is only the court which fixed the time originally which can extend the time. There is authority for this view in Narayanan Nair Raman Nair v. Govindan Nair Raman Nair (AIR. 1952 TC. 440 ).

(3.) IT was also contended on the basis of S. 3 clause (25)sub-clause (q) of Ordinance 8 of 1962, that the transaction under which the 6th defendant is now in possession of the property, being described to be an Otti, she is in the position of a tenant, and under S. 5 is not liable to be evicted. IT must also be shown that the otti in question is not a usufructuary mortgage as defined in the Transfer of Property Act, 1882. This question will have to be decided in proper time, if it becomes necessary, by the execution court.