KUTTAN RAGHAVAN Vs. ITTYATHI MANIYAN @ BABU

JUDGEMENT

(1.) This writ petition is filed by the judgment debtor/defendant, aggrieved by the order dated 19.01.2011 in E.P.No.81 of 2010 in O.S.No.424 of 1969 of the Munsiff Court, Vaikom.

(2.) The above suit was one for redemption of mortgage of 12.500 cents of nilam in Sy.No.137/9 of Mulakkulam Village. The property originally belonged to one Mani Paru, which was under mortgage to one Avira Varkey by mortgage deed No.1100/1122 ME dated 21.04.1122. Subsequently, the mortgage right over the property was transferred by Avira Varkey to one Thomas, who, in turn, transferred it to the petitioner herein on 24.07.1964. The suit for redemption was filed against the petitioner herein arraying him as the first defendant. A preliminary decree was passed on 31.01.1993 and the decree holder was permitted to deposit the mortgage money. On deposit of it, final decree was passed on 10.12.1986. The decree was unsuccessfully challenged in appeal in A.S.No.18 of 1987. The second appeal filed thereafter as S.A.No.832 of 1990 was dismissed by this Court on 09.06.1998. The original mortgagor was the first decree holder. After the death of Mani Paru, the right devolved on her children arrayed as decree holders 2, 3, 4 and 5, who are Narayanan, Leela, Chandran and Maniyan respectively. The fifth decree holder Maniyan filed E.P.No.81 of 2010 arraying the petitioner herein as the judgment debtor and the remaining decree holders as the respondents. While the execution proceedings were pending, other decree holders appeared and it was contended by the second decree holder Narayanan and fourth decree holder Chandran that they had assigned their rights over the mortgage property to the judgment debtor by document No.1951/10 dated 02.08.2010.

(3.) The judgment debtor took up the contention that the decree had become unenforceable in the light of the assignment of 2/4th of the mortgage right of the decree holders in favour of the judgment debtor. It was contended that the fifth decree holder had no right to execute the decree since there was a merger of interest of a portion of the decree holders in that of the judgment debtor. Court below by the impugned order, relied on the decision reported in Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. ((2005)5 SCC 492) which had held that, partial assignment of the mortgaged property will not result in the breaking of the mortgaged property and hence, judgment debtor was liable to be evicted. It was held that the only remedy available to the judgment debtor was to seek partition of the property. The contention of the judgment debtor was that in light of a merger of the interest of some of the decree holders with that of the interest of the judgment debtor, property could not be delivered and the option available to the decree holder was to seek partition of the property. Negativing the above contentions, court below ordered delivery of the property to the decree holder. This is challenged by the judgment debtor in this writ petition.