SANTHAPPU ALI Vs. BHASKARAN

JUDGEMENT

(1.) Petitioners are defendants in O.S. No.283/2002, a suit for redemption of the mortgage instituted by mortgagor, the respondents herein. A composite decree was passed in favour of the plaintiff on 11.4.1990. Though the defendants preferred an appeal as A.S. No.641/1990 before the District Court, Trivandrum, the same was dismissed on 30.8.1995 confirming the decree passed by the Trial Court.

(2.) That the plaintiff deposited the amount as fixed by the Court below only on 12.2.1999. However, even before making the aforesaid deposit an execution petition E.P. 52/98 was filed by the decree holders/mortgagors, which was dismissed by the execution Court taking notice of the fact that the deposit was not made on the date of the execution petition. A copy of the order passed in E.P. No.52/98 was made available in the course of the argument by the learned Counsel for the petitioners herein which shows that the judgment debtors took up a contention that the plaintiffs/decree holders ought to have deposited the amount within six months as contemplated under O.34 R.7 of the C.P.C. On the other hand, the plaintiffs wanted to sustain their plea that the amount need be deposited within a period of 12 years as provided under Art.136 of the Limitation Act. The execution Court took notice of the fact that the deposit was made only on 12.2.1999 after filing the execution petition and no petition was filed by the decree holders for extension of time or condonation of delay for not depositing the amount within a period of six months from the date of the decree. In such circumstances, the plaintiffs have not complied with the conditions mentioned in the decree. It was held that there is no executable decree.

(3.) Thereafter, the plaintiffs (respondents herein) preferred an LA. No.6080/2002 under S.5 of the Limitation Act seeking to condone the delay in making the deposit of the mortgage amount. This was opposed by the petitioners herein contending that the decree has become unexecutable as the amount was not deposited within six months from 6.4.1990 (being the date of the decree of the Trial Court) and further contended that the application is not maintainable after the dismissal of execution petition by the execution Court. On the other hand the respondents herein contended that the deposit having been made on 12.2.1999 long before the remedy was barred and since sufficient grounds have been made out to condone the delay, they are entitled to have the deposit made regularised so as to enable them to execute the decree.