BALAMBIKA Vs. ELIZABETH

JUDGEMENT

(1.) THIS revision by the mortgagee is filed against the dismissal of E.A. 105 of 1989 filed under S. 47, C.P.C, and in E.P. 130 of 1988 in O.P.I of 1986. The said O.P. 1 of 1986 was filed by the respondent? usufruc tuary mortgagor herein, under S. 83, Trans fer of Property Act, hereinafter called the ?Act?.

(2.) ADMITTED in O P. 1 of 1986 the respon dent-mortgagor of the property in question, deposited the mortgage amount on 24-1-1986 as contemplated under S. 83 of the Act and notice was ordered to the mortgagee-peti tioner herein as per the said section and though he entered appearance and was given time for filing counter on 11-11-1986 and on 3-12-1986, he did not file any counter. So, the respondent herein, who was the peti tioner in the said O P was examined and there was no cross-examination by the peti tioner herein nor the petitioner herein let in any oral or documentary evidence. Never was it also pleaded that the mortgage amount deposited was not the correct amount due or that the petitioner was unwilling to accept the mortgage amount. Then on 12th January, 1987, the order was passed in O.P. 1 of 1986, directing the petitioner herein to deliver the property to the respondent here in. Subsequent to the said order, the peti tioner herein filed I.A. 872 of 1987 to set aside the said order in the O P. on the ground that the said order in the O.P. was an ex parte order. The said I.A. also was dismis sed holding that the said order in the O.P. was not an ex parte one, that the petitioner herein did not let in evidence in the O.P. as per O. 17, R. 3, C.P.C, that there was also a delay of 15 days in filing the said application. That dismissal order was pas sed on 26-11-1987 and there is no appeal or revision against the said dismissal order of the earlier order in the O.P. Subsequently, when the respondent herein who secured the above order in O P. 1 of 1986 filed E.P. No. 130 of 1988 to execute the said order in the said E.P. the petitioner herein filed a counter. Therein, though it was admitted that the mortgage was discharged it was pleaded that there was a tenancy which existed prior to the mortgage and subsisted still. But this plea of tenancy prior to the usufructuary mortgage cannot be of any avail since this Court has held that if there is a possessory mortgage in favour of the lessee, the lessee's interest gets merged in the mortgage rights at its acquisition and consequently there is an implied surrender of the lease-hold, then itself (Vide Meenakshiamma v. Kizhakka Velath Narayani 1 . Whatever it is, after hearing both the parties, the executing Court by order dated 10-1-1989 ordered delivery of possession. Immediately thereafter, before delivery could be effected the present E.A. 105 of 1959 was filed in February, 1989, and the court below has dismissed the said E.A. by order dated 7-9-1989 and against the said order the petitioner has filed this revision.