P SAMSUDIN Vs. MOHAMAD YUSUF

JUDGEMENT

(1.) Heard both sides

(2.) The judgment debtors in O.S.No.17 of 92, of on the file of the District Munsif Court, Melur, are the revision petitioners. One Md.Abdul Khader Alim Sahib, the father of the respondents borrowed a sum of Rs. 2,000/- from M.Peer Mohammad Rowther, who is the father of the revision petitioners on 20.10.1966 and executed a 'othi' in respect of 'A' schedule property and the period of redemption was five years and on 09.04.1978 another 'othi was executed by Md.Abdul Khader Alim Sabhib for a sum of Rs. 7,000/- in favour of M.Peer Mohammad Rowther in respect of 'B' schedule property and the redemption period was also five years. As per 'othi', the mortgagee was authorised to effect repairs and maramaths at his own costs and recover the amount spent by him along with mortgage amount with interest. The father of the revision petitioners viz. M.Peer Mohammad Rowther, the mortgagee effected necessary repairs to the property and the mortgagor, the father of the respondents did not repay the same. Nevertheless, the mortgagor filed the suit for redemption of 'othi' in O.S.No.17 of 1992 by depositing the office account of Rs. 9,000/- and after full trial, the learned District Munsif, passed a preliminary decree on 18.08.1994 directing the mortgagors/the revision petitioners herein to pay a sum of Rs. 1169-18/- towards the maramath expenses and taxes. Aggrieved by the preliminary decree, M.Peer Mohammad Rowther, the mortgagee filed A.S.No.103 of 1994, on the file of the Principal Sub Judge, Madurai and during the appeal, he died and the revision petitioners herein were impleaded as legal heirs. During the pendency of the said appeal, the respondents filed I.A.No.349 of 1997, on the file of the District Munsif, Madurai, to pass a final decree in terms of preliminary decree and despite objections raised by the revision petitioners that appeal in A.S.No.103 of 1994 is pending against the preliminary decree, final decree came to be passed on 15.12.1998. Against the preliminary decree, the first appeal in A.S.No.103 of 1994 was filed by the revision petitioners and the first appeal was partly allowed on 26.02.2003 and the preliminary decree was modified and the mortgagor, the respondents herein, were directed to pay the maramath and tax amount of Rs. 9,149.24/-. Thereafter, the respondents filed E.P.No.484 of 2006 under Order 21 Rule 35 C.P.C. for recovery of possession, after depositing the entire decree amount as per the modified preliminary decree passed in A.S.No.103 of 1994. That was objected to by the revision petitioners stating that as per the decree passed in A.S.No.103 of 1994 only preliminary decree passed in O.S.No.17 of 1992 was modified and therefore, final decree was not passed on the basis of the modified preliminary decree and the respondents herein cannot execute the said decree passed in A.S.No.103 of 1994, which is only preliminary decree without applying for final decree. That contention was negatived and against the same, this civil revision petition is filed.

(3.) The learned counsel appearing for the revision petitioners, Mr.R.Venkatraman, vehemently contended that only after passing of the final decree, execution can be filed to execute the decree and in this case, though the final decree was passed on 15.12.1998, that was passed only on the basis of the preliminary decree, dated 18.08.1994 passed in O.S.No.17 of 1992 and against the preliminary decree, A.S.No.103 of 1994 was filed and that was partly allowed and the preliminary decree was modified and therefore, unless the final decree is passed on the basis of the modified preliminary decree as per the judgment in A.S.No.103 of 1994, the respondents are not entitled to file the execution petition. He further submitted that in A.S.No.103 of 1994, the preliminary decree was modified on 26.02.2003 and within three years, final decree application ought to have been filed and the respondents have not filed the final decree application within three years and hence, they are also barred from redeeming the property and in support of his contention, he relied upon the Supreme Court judgment in the case of Achaldas Durgaji Oswal (Dead) through L.Rs. v. Ramvilas Gangabisan Heda (Dead) through L.Rs. and others, 2003 AIR(SC) 1017.