HUBERT PEYOLI Vs. SANTHAVILASATHU KESAVAN SIVADASAN

JUDGEMENT

(1.) Sustainability of the judgment and decree passed by the Addl. Sub Court, Kollam in O.S. No. 286 of 1983, dismissing the suit as barred by limitation and also after arriving at a finding that Ext. A2 for establishing creation of a mortgage by deposit of title deeds cannot be looked into for want of registration, was subjected to challenge in A.S. No. 77 of 1989 before this Court. The finding of the trial court was confirmed by the learned single Judge. The above judgment and decree dated 22.05.1998 in A.S. No. 77 of 1989 has been subjected to further challenge in this appeal.

(2.) With regard to the factual matrix, it is to be noted that the suit was filed by the appellant/plaintiff for realisation of the amount due from the respondents/defendants contending that the amount was given to the respondents/defendants on the strength of a pronote executed on 17.11.1971 and on further deposit of title deeds with intend to create an equitable mortgage as a measure of additional security.

(3.) The suit was resisted by the defendants on many a ground. Though the execution of the pronote and the receipt of Rs. 15,000/- was admitted therein, it was contended by the respondents/defendants that the suit was barred by limitation; that the amount due to the plaintiff had already been repaid; that the memorandum dated 17.11.1971 as to the deposit of title deeds was never executed with an intend to create equitable mortgage with regard to the above transaction and further that there was no valid creation of an equitable mortgage.