1. Petitioners are challenging the dismissal of the application filed by them for passing of a final decree in O.S 9/67. A preliminary decree for partition of the plaint schedule property into 10 equal shares and for redemption of their 1/10 shares on payment of proportionate share of the mortgage amount covered by the registered mortgage deed was passed by the Sub Judge. It was challenged before District Court in A.S 171/72. The appeal was partly allowed modifying the decree. It was challenged before this Court in S.A 368/76. This Court set aside the modified decree passed by the appellate Court and restored the decree of the trial Court. On the death of the original plaintiff, his legal heirs filed I.A 3139/95 for passing a final decree. An objection was raised with regard to the maintainability of the final decree contending that it is barred by time. The learned Sub Judge overruled the objection and appointed a Commissioner to value the improvements. It was challenged before this Court in C.R.P 2318/99. On 14-6-2002, the revision was dismissed holding that the revision is not maintainable and the revision petitioners if aggrieved against the final decree are entitled to challenge the same. The Commissioner submitted the report. The respondents sought to raise a contention that the petition is barred by limitation. When if was not allowed to be raised, they approached this Court by filing CMP 5786/02 for an order clarifying that they are entitled to raise the question of limitation in the final decree. As per order dated 31-10-2002, that petition was disposed making it clear that respondents are entitled to raise all available contentions in the final decree. Respondents armed with that order, contended before Sub Court that they are entitled to raise the question of limitation once again and persuaded the Court to consider the objection regarding the limitation. As per order dated 31-1-2003, Court below dismissed the final decree application holding that it is barred by time petitioners in the final decree are challenging the said order in this revision filed under Section 115 of the Code of Civil Procedure.
2. A preliminary objection was raised by the respondents that the revision is not maintainable as by the impugned order, the final decree application was dismissed and so remedy of the petitioners is only to prefer a regular appeal and no revision is maintainable. Reliance was placed on the decision of the Apex Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) SCC 436): (AIR 2005 SC 226) and a decision of this Court in Janardhanan v. Chandramathy (1996 (2) KLT 545): (1997 AIHC 640). It cannot be said that the impugned order is a final decree. Though pursuant to the preliminary decree application for passing a final decree was filed, as per the impugned order Court below dismissed the application holding that it is barred by time. It is not a final decree. In Janardhanan's case (supra) the maintainability of an appeal preferred against the final order passed in the final decree application without producing a certified copy of the final decree was raised. That was a case where though a final decree was passed directing the sharers to produce non-judicial stamp papers for engrossing the final decree, it was not produced and an appeal was filed challenging the final order without producing the certified copy of the final order. This Court held:—
“An appeal filed by a party aggrieved by a final order or judgment passed in a final decree application in a suit for partition before an executable final decree is drawn up on stamp papers can be entertained without a certified copy of the decree treating the order or judgment appealed against itself as a decree as defined in S. 2(2) of the Code for the purpose of filing the appeal. In the above view, which we have taken, we would hold that the appeal filed by the appellants in the peculiar circumstances of the case is competent and maintainable.”
The Apex Court in Shyam Sunder's case (AIR 2005 SC 226) (supra) laid the principle that even when an appeal is filed with a petition to condone the delay under Section 5 of the Limitation Act and that application was dismissed as barred by time it is a decision in the appeal. True, in such a case the remedy available is only to challenge the decree and judgment by a second appeal.
3. The facts are not identical. A preliminary decree for partition and redemption was passed. Though final decree application was filed, no judgment was passed in the final decree. The preliminary decree is not only for redemption but also for partition. It cannot be said that the impugned order amount to a decree as defined under sub-section (2) of Section 2 of CPC. As per the impugned order, the final decree application was dismissed without passing any judgment even in respect of the preliminary decree providing partition. In such circumstance the order is revisable under Section 115 of CPC and revision petition is maintainable.
4. S.A 368/76 was filed challenging the preliminary decree is modified in the appeal. It was disposed by this Court restoring the judgment of the trial Court, on 15-4-1981. The learned Sub-Judge by the impugned order dismissed the final decree application holding that the preliminary decree became final on 15-4-1981 and the final decree application was filed only on 29-9-1995, after the expiry of three year period provided under Article 137 of the Limitation Act and hence it is not maintainable.
5. The first contention raised by the petitioners is that the question of limitation raised by the respondents were answered against them as per the order dated 20-7-1990 itself and it was unsuccessfully challenged before this Court in C.R.P 2318/99 and therefore respondents are not entitled to agitate the same question as principles of res judicata applies, to even different stages of the same proceedings and so learned Sub-Judge should not have reconsidered the question in the same final decree application and on that sole ground the impugned order is to be set aside. There is force in the submission. In the final decree application respondents have filed a written objections. The only objection taken was that the mortgage was created on 30-1-1951 and the mortgage amount was not deposited within the period provided in the decree or within three years from the date of the preliminary decree and so the final decree application for redemption is not maintainable and it is to be dismissed. No other objection was raised. It was this objection which was considered by the Court below in the previous order dated 20-7-1999. The objection on the bar of limitation was specifically overruled and it was held that the application for redemption is not barred by time and is maintainable. That order was challenged before this Court in C.R.P 2313/99. This Court dismissed the C.R.P holding that the objection was overruled by the Court below and the revision petitioners if aggrieved are entitled to challenge it along with the final decree to be passed by the trial Court. The argument of learned counsel appearing for respondents is that even though the bar of limitation was raised by the respondents before the Court below, that was not effectively considered in the order dated 20-7-1999 and in the revision also that question was not specifically considered and therefore they are entitled to raise the question once again in the final decree application. It was also argued that to avoid any ambiguity they sought a clarification from this Court by filing CMP 5786/02 in the earlier revision and it was clarified that petitioners are entitled to raise all contentions and therefore it cannot be said that the impugned order is illegal. I cannot agree. As stated earlier, the only objection raised to the final decree application was the bar of limitation. As is clear from the order dated 20-7-1999, a decision of this Court in Kunjamma v. Bhageerathy Amma (1990 (1) KLT 504): (AIR 1991 Ker 111) was also pressed into service and after hearing both the parties, Court below passed an order overruling the objection that petition is barred by time. That was challenged before this Court in C.R.P 2318/99. The only question to be considered in the CRP was whether the finding of the trial Court that the final decree application is not barred by time is correct or not. This Court did not interfere with the previous order of the Court below over ruling the objection with regard to the limitation raised. This Court only observed that respondents are entitled to challenge the order along with the final decree to be passed. Even in the clarification order dated 31-10-2002, it was only clarified that respondents are entitled to raise “all the available contentions”. Therefore it cannot be said that by the order dated 31-10-2002, this Court either set aside the previous order of the Court below that the petition is not barred by time or directed the Court below to reconsider that question. Even if it is taken that the earlier finding of the Court below that the final decree application for redemption is not barred by time is erroneous, the same question cannot be reagitated before the same Court in the same proceedings. The legal position has been well settled in Satyadhyan Ghosal v. Deorajin Debi (AIR 1960 SC 941). It held as follows (para 8):—
“The principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.”
The legal position has been reaffirmed in Prahlad Singh v. Col. Sukhdev Singh (AIR 1987 SC 1145). It does not mean that because of a earlier order passed at the early stage of the litigation in an interlocutory matter and no appeal was taken therefrom or no appeal lie to the appellate Court, the decision cannot be challenged at all. But as far as the same Court is concerned, a party is not entitled to reagitate the matter again and again. In view of the contention originally raised and overruled by the Court below which was unsuccessfully challenged before this Court, respondents are not entitled to reagitate the question of limitation and the Court below is not competent to decide the question once again. Court below should not have allowed the respondents to raise the question. Therefore the impugned order is illegal for that sole reason.
6. As per the preliminary decree, petitioners are entitled to redeem the mortgage. The mortgagee is admittedly a usufructuary mortgage. The preliminary decree was finally confirmed by this Court on 15-4-1981. The final decree application was filed on 29-9-1995.
7. Order XXXIV, Rule 7 of CPC provides for a preliminary decree in redemption suit. Under sub-rule (1) if the plaintiffs succeeds, the Court shall pass a preliminary decree (a) ordering that an account be taken of what was due to the defendant at the date of such decree for the principle and interest on the mortgage, the costs of suit if any, awarded to him and other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon or by declaring the amount so due and directing that if the plaintiff pays into the Court the amounts so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account under clause (a) or from the date on which such amount is declared in Court under clause (b) and thereafter pays such amount as may be adjudged due in respect of subsequent, charges and expenses as provided in Rule 10 together with subsequent interest as provided in Rule 11, directing that defendants shall deliver to the plaintiff or to such person as the plaintiff appoints all documents in his possession or power relating to the mortgaged property and if so required, shall retransfer the property to the plaintiff free from the mortgage and from all encumbrances created by the defendants or any other persons claiming under him, and if necessary directing defendant put the plaintiff in possession of the property. If the payment of the amount found or declared due by the preliminary decree is not made on or before the date so fixed or the plaintiff fails to pay within time as the Court may fix, the defendant shall be entitled to apply for a final decree as provided under sub-rule (1)(c)(ii). Sub-rule (2) of Rule 7 provides that on good cause show and upon terms to be fixed by the Court, Court may at any time before passing of a final decree for foreclosure or sale, extend the time fixed for the payment of the amount found or declared or the amount adjudged due in respect of subsequent charges, expenses and interest. Rule 8 provides for final decree in a redemption suit. Under sub-rule (1) where before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of the sale held in pursuance of a final decree passed under sub-rule (3) of that rule where the plaintiff makes payment into Court of all amounts due from him, under sub-rule (1) of Rule 7, on an application filed by the plaintiff the Court shall pass a final decree or if such decree has been passed, an order ordering the defendant to deliver up the documents referred to in the preliminary decree and if necessary order him to retransfer the mortgaged property and if necessary to put the plaintiff in possession of the property. Sub-Rule (3) provides that where payment in accordance with sub-rule (1) has not been made, on an application made by the defendant in the case of a mortgage by conditional sale or an anomalous mortgage, Court shall pass a final decree declaring that plaintiff and all persons claiming under him are debarred from all rights to redeem the mortgaged property and if necessary order the plaintiff to put the defendant in possession of the mortgaged property or in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold and the proceeds of the sale be paid into Court and applied for payment of what is found to be due to the defendant.
8. Petitioners are the legal heirs of original plaintiff the mortgagor. Plaintiffs respondents are the legal heirs of the mortgagee. The mortgage is admittedly a usufructuary mortgage as defined in Section 58(d) of Transfer of Property Act. The right to redeem the mortgage is a very valuable right possessed by a mortgagor. Such a right to redeem the mortgage can be exercised before it is foreclosed or the estate is sold. The equitable right of redemption is dependent on the mortgagor giving the mortgagee reasonable notice of his intention to redeem and on his fully performing the obligations under the mortgage. Section 60 of the Transfer of Property Act deals with the right of a mortgagor to redeem the mortgage. A right of redemption which is statutorily recognized as a right of mortgagor as an incident of mortgage subsists so long as the mortgage itself subsists. As per proviso to Section 60 of Transfer of Property Act, the right of redemption conferred thereunder is subject to that proviso. As per the proviso the right is confined so long as the right is not extinguished “by act of the parties or by decree of Court”. The very conception of mortgage involves three principles. Firstly once a mortgage is always a mortgage. It means that a mortgage is always redeemable and if a contrary provision is made in the mortgage deed, that provision is invalid. Secondly the mortgagee cannot reserve to himself any collateral advantage outside the mortgage agreement. Thirdly once a mortgage is always a mortgage and nothing but a mortgage. In other words, any stipulation which prevents a mortgagor from getting back the property mortgaged is void. Right to redeem is an incident of a subsisting mortgage and is inseparable from the mortgage so that the right of redemption is co-extensive with the mortgage. There are two distinct right of redemption. One is the legal or contractual right to redeem on the appointed day. The other is the equitable right to redeem which arises only after the contractual date of redemption has passed. The right of redemption must be considered bearing in mind the statutory right as provided under Section 60 of Transfer of Property Act. By reason of Article 61 of Limitation Act, 1963 the limitation provided for a suit to redeem or recover possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 of Limitation Act is only a residuary provision which provides for limitation of three years in a case where no period of limitation is provided.
9. As stated earlier, sub-rule (1) of Rule 7 provides that if the plaintiff succeeds, Court shall pass a preliminary decree ordering the account as to what was due to the defendant at the time of decree be taken or declare the amount so due at that time and direct as provided under clause (c). The direction contemplated is that if the plaintiff pays into Court the amounts so found under sub-clause (a) or declared under sub-clause (b), the defendant shall deliver the documents in his possession or power relating to the mortgaged property and if necessary put the plaintiff in possession of the property. Sub-clause (ii) of Clause (c) of sub-rule (1) provides that if the payment of the amount found or declared due under the preliminary decree is not made on or before the date so fixed or plaintiff fails to pay within such time as the Court may fix the defendant shall be entitled to apply for a final decree. But sub-clause (a) thereunder makes it clear that it is applicable only in the case of a mortgage other than a usufructuary mortgage. Clause (ii)(a) reads:—
“(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for a final decree.”
(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by Conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or”
Rule 7 of Order XXXIV does not confer a right on the mortgagee to apply for final decree if the mortgage is a usufructuary mortgage. That right is conferred only on mortgagees of other types of mortgage.
10. Under sub-rule (1) of Rule 8 of the Order XXXIV, a mortgagor is entitled to make an application for passing a final decree at any time before a final decree debarring the plaintiff from all rights to redeem the property has been passed or before the confirmation of a sale held in pursuance of final decree passed under sub-rule (3). By sub-rule (i) of Rule 8 a right of redemption is conferred upon the mortgagor of a usufructuary mortgage. Such a provision is made considering the right of redemption provided under Section 60 of the Transfer of Property Act and also considering the fact that a usufructuary mortgagee would be entitled to possess the property, till a final decree of redemption is passed.
11. As the right of redemption of a mortgagor is a statutory right, it can be taken away only in terms of the proviso appended to Section 60. Under the proviso that right of redemption is extinguished either by decree or by a act of parties. It is not disputed that no decree has been passed extinguishing the right of the mortgagor. There is also no case that the right of redemption has come to an end by the act of parties. A right for obtaining a final decree for sale or foreclosure can be exercised only on payment of such money and that right can be exercised at any time before the sale is confirmed, even if a final decree might have been passed in the meanwhile. The mortgagee is not entitled to receive any amount under the preliminary decree nor the mortgagor is required to make an application to recover before paying the amount. The law is well settled that in spite of the expiry of the time for deposit of mortgaged money in terms of the preliminary decree, a second suit for redemption would be maintainable. Except in the case of usufructuary mortgage Rules 7 and 8 enables the mortgagee to apply for a final decree as provided under sub-clause (3) of Rule 8. But a usufructuary mortgagee is not entitled to the said benefit. Therefore until a final decree is passed the relationship of the mortgagor will not be extinguished. So long as that relation subsists, it is open to the mortgagor to redeem the mortgage, if the proviso to Section 60 does not apply. The legal position has already been settled by the decision in K. Parameswaran Pillai v. K. Sumathi (AIR 1994 SC 191). It has be declared (para 4):—
“The resultant operation of the law would be that in the case of usufructuary mortgage, the plaintiff need not make any application for extension of time fixed in the preliminary decree. The mortgagee/defendant has no right to make an application to foreclose the right of the plaintiff or sale of hypothica declaring that the plaintiff has been debarred from making payment in Court or to proceed further. At any time before passing the final decree or confirmation of the sale held in pursuance of the final decree the plaintiff usufructuary mortgagor has been given right to make payment of the redemption money due under preliminary decree and the subsequent liability incurred thereon. The outer limit for making such payment is passing of the final decree or confirmation of the sale made in furtherance thereof. The final decree for foreclosure or sale or redemption in relation to other mortgages, the right to payment has been hedged with the duty to deposit the money declared or quantified in the preliminary decree within the time specified under the preliminary decree or extended period from time to time till final decree debarring the plaintiff from redemption etc. is passed. The outer-limit for an usufructuary mortgagor for making payment of the amount due under the preliminary decree thereby is passing of the final decree or the date of confirmation of the sale.”
The position has been reiterated in para 6 as follows:—
“In the case of usufructuary mortgage clause (b) of sub-rule (3) of Rule 8 expressly excludes the right of the mortgagee to apply for foreclosure or sale or redemption. Necessary consequence is that so long as the right subsists, though there is delay in compliance of the condition imposed in the preliminary decree, the right of redemption to the mortgagor is not lost. It will be barred only on expiry of the period of limitation prescribed under the Limitation Act. The reason is obvious. Order XXXIV, Rule 8(3) does not give any right to the mortgagee but the right is given only to the mortgagor to seek redemption on the usufructuary mortgage in a decree under Rule 8(3) of O. XXXIV.
It was also held that in the case of preliminary decree for redemption of usufructuary mortgage no limitation begins to run until deposit is made, though there is a conditional preliminary decree and default was committed by the mortgagor.
12. Relying on the decision of the Supreme Court in Mohammed Abdul Khader v. Kunju Sayed (1997 (1) KLT 53 (SC)) and in Monotosh Kumar Mitra v. A.M Shaw ((2000) 2 SCC 672): (2000 AIR SCW 1546) it was argued by the learned counsel appearing for respondent that in view of Article 137 of Limitation Act, as the application was filed only after three years from the date of the preliminary decree the petition was barred by time and rightly dismissed by the Court below. Article 137 of Limitation Act 1963 reads as follows:—
Art. 137. Any other application for which no period of limitation is provided else where in this division. Three years when the right to apply accrues.
In Monotosh Kumar Mitra's case (supra) Apex Court held that an application for passing a final decree is governed by residuary Article 137 under which application for passing a final decree has to be filed within three years from the date when the right to apply accrues. But that was not a case of usufructuary mortgage. Under the preliminary decree, the mortgage money has to be repaid in instalments stipulating that in case of default of payment of any one of the instalments, plaintiff may apply for passing a final decree for sale of the mortgaged property. It was held that on the default to pay the first instalment itself, the right of the plaintiff to apply for final decree accrued and the starting period of limitation is that day and on the expiry of three years from that date, the right will be barred as provided under Article 137 of the Limitation Act. But that principle cannot be applied to a case of usufructuary mortgage. Article 137 of Limitation Act which is a residuary provision provides for limitation for three years in a case where no period of limitation is provided. Section 60 of Transfer of Property Act confer the statutory right to redeem the mortgage unless the right has been extinguished either by act of parties or by a decree of a Court as provided under the proviso. Article 61 of Limitation Act provides the period of limitation for a suit by mortgagor. Under clause (a) the period to institute a suit by the mortgagor to redeem or recover possession of immovable property mortgaged is thirty years and the starting point of the period is when the right to redeem or recover possession accrued. Rules 4 and 8 of Order XXXIV respectively provides the rules for passing a preliminary decree and final decree in a redemption suit. Rule 8 provides that before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of that rule (Rule 8) plaintiff can make an application for passing a final decree. The final decree debarring the plaintiff from all right to redeem the mortgaged property contemplated is the final decree passed as provided under Sub-clause (ii) of Clause (c) of sub-rule (1) of Rule 7. But the final decree application so contemplated is not by a usufructuary mortgagee as clause (c) is not applicable to a usufructuary mortgage. So also the final decree contemplated under Rule 8(3) is in the case of a mortgage by conditional sale or an anomalous mortgage as provided under clause (a) or any other mortgage except usufructuary mortgage as provided under clause (b) therein and not in the case of usufructuary mortgage. In spite of the passing of a preliminary decree, till the mortgage amount is deposited by the mortgagor, the mortgagee mortgagor relationship will not come to an end. The legal position is reiterated in M.P Ahamed v. Kuthiravattam Estate Receiver (AIR 1997 SC 208) as follows (at p. 212, para 4):—
“It is now well settled that despite the decree for redemption which might have been passed by a competent Court and which might have become final till the mortgage amount is deposited by the mortgagor the relationship of mortgagor and mortgagee does not come to an end. Conversely once the amount is deposited by the mortgagor decree holder even during the executing proceedings, the relationship between the parties as mortgagor and mortgagee ceases and thereafter till actual delivery of possession the erstwhile mortgage-in-possession remains merely as judgment-debtor in illegal possession.”
So also the failure of the mortgagor to deposit the mortgage money declared due within the time fixed under the preliminary decree will not disentitle or prohibit him from exercising the right to redeem. Supreme Court in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda (AIR 2003 SC 1017) considered that question and held (para 36):—
“We are, therefore, of the opinion that although by reason of preliminary decree in the suit for redemption of usufructuary mortgage, the Court may fix the time for payment of the amount declared due but default in depositing such payment would not debar him from a right to redeem the mortgaged property.”
Though the limitation to file an application under Rule 8(1) of Order XXXIV to pass a final decree for redemption other than usufructuary mortgage starts running and also continues to run from the date fixed in the preliminary decree, unless it is stayed or suspended, or the period extended by an order of the Court, and the period will expire on the expiry of three year period under Article 137, in the case of a final decree for redemption of an usufructuary mortgage the position is different. In the case of a preliminary decree for redemption of usufructuary mortgage the period of limitation starts to run only on the deposit made. Therefore in spite of the provision in the preliminary decree to deposit the mortgage money within a stipulated period and the default committed by the mortgagor to deposit the same, no limitation starts to run till the deposit is made. If so, such a final decree application cannot be dismissed as biased by time on the expiry of three years from the expiry of six months or three years from the date of the preliminary decree.
13. Apex Court in Montosh Kumar Mitra's case (2000 AIR SCW 1546) (supra) was not considering a usufructuary mortgage. Hence the principle that under Article 137 of Limitation Act the period of three years starts to run from the expiry of the period fixed under the preliminary decree has no application to a final decree application for redemption of a usufructuary mortgage.
14. A learned single Judge of this Court (Balararna Marar, J.) considered the question in Kunjamma v. Bhageerathy Amma (1990 (1) KLT 504): (AIR 1991 Ker 111). After an elaborate discussion of the case law the learned Judge stated the principle in para 13 as follows:—
“I am, therefore, in complete agreement with the view expressed in AIR 1946 Patna 99 (supra) and hold that without seeking extension of time fixed in the preliminary decree, the mortgagor in the case of a usufructuary mortgage is entitled to deposit the amount at any time after the period fixed in the preliminary decree and make an application for final decree under Rule 8(1) of Order 34 provided the right to redeem the mortgage has not been extinguished by that time. I further hold that Article 137 of the Limitation Act is not applicable for such deposit whereas it is applicable only in the case of an application presented under Rule 8(1) for passing a final decree in which case the application has to be filed within three years of such deposit.”
A Division Bench of this Court considered the correctness of that decision in Govindan Nair's case (2003 (1) ILR Kerala 327). In Kunjamma's case (AIR 1991 Ker 111) the learned single Judge additionally held that the amount found due in the preliminary decree should be deposited within thirty years from the date on which the mortgage money has become due as right of redemption is permanently lost after the expiry of thirty years from the date on which, the mortgage money has become due as provided under Article 61 of Limitation Act. Their Lordships of the Division Bench holding that Article 61(a) only provides period for filing suit for redemption as thirty years and not for payment of money overruled the contrary view expressed by the learned single Judge in Kunjamma's case. But the Division Bench also reiterated the view of the learned single Judge that the right to redeem the mortgaged property subsists so long as the right is there and it is always open to a mortgagor to avail that right on payment of the amount declared due under the preliminary decree and till the deposit of the redemption money as ascertained in the preliminary decree, the final decree application is not barred by limitation under Article 137 of Limitation Act.
15. In Mohammed Abdul Khader case (supra) (1997 (1) KLT 53) appellant before the Apex Court claimed that the preliminary decree for the redemption was deficient as no time had been fixed for appellant to deposit the redemption money and the value of improvements claimed by the mortgagee was also not ascertained. It was therefore contended that the decree cannot be called preliminary decree and it could only be a decision preparatory to preliminary decree. Their Lordships rejected the contention and held that the terms of the decree establish that it is a preliminary decree. The question when the period of limitation started to run and the application of Article 137 were not considered by the Apex Court. A three Judge Bench of the Apex Court in A.D Oswal's case (AIR 2003 SC 1017) (supra) considered that decision on the application of Article 137 of Limitation Act and held (para 42):—
“In Mohd. Abdul Khader Mohd. Kasim's case (supra), this Court was concerned with the question as to whether in absence of any time having been fixed by the Court passing the preliminary decree directing the appellant to deposit the redemption money, the decree passed in terms of O. 34, could be called a preliminary decree at all. This Court examined the preliminary decree and held that the obligation and counter obligation made therein are separate in nature and by reason thereof the appellant was required to deposit the redemption money of Rs. 18,000/- within the statutory period of six months provided under O. 34, R. 7, CPC. This Court in the facts of that case had not and could not have laid down a law to the effect that the deposit must be made within a period of six months as otherwise the application for passing a final decree was to become barred by limitation.”
Therefore the argument of learned counsel appearing for respondent that in view of the decision in Mohammed Abdulkhader's case the final decree application is barred by time cannot be accepted.
16. A two Judge Bench of the Apex Court in Parameswaran Pillai's case (AIR 1994 SC 191) laid the principle as follows (para 6):—
“The mortgagee having been in possession and enjoyment of the hypothica is not disabled by the preliminary decree. On the other hand the liability continues to subsist against the mortgagor. Therefore, it is upto the mortgagor to redeem the mortgage. Till then his liability under the mortgage continues to run on the estate. It is therefore clear that the limitation to file an application under O. 34, Rule 8(1) to pass a final decree for redemption, other than the preliminary decree for redemption of usufructuary mortgage, starts running and continues to run its course from the date of expiry of the period fixed in the preliminary decree, unless it is stayed or suspended or the time prescribed in the preliminary decree is extended by an order of the Court. In its absence on expiry of the limitation of three years from the date fixed in the preliminary decree is expired under Article 137 of the Schedule to Limitation Act 1963 (Art. 181 of Schedule 2 of Old Act), the plaintiff is debarred to enforce the right to pass the final decree. But in the case of preliminary decree for redemption of usufructuary mortgage no limitation begins to run until deposit is made, though there is a conditional preliminary decree and default was committed by the mortgagor for compliance thereof.”
17. The three Judge Bench of the Apex Court in Achaldas Durgaji Oswals's case (AIR 2003 SC 1017) analysed all the earlier decisions including Kunjamma's case (AIR 1991 Ker 111) (supra) and Parameshwaran Pillai's case (AIR 1994 SC 191) (supra) and reiterated the principle that although in a suit for redemption in the preliminary decree Court may fix the time for payment of the amount declared due and the default of the mortgagor would not debar him from exercising his right to redeem the mortgaged property and for a final decree application no limitation begins to run until deposit is made.
18. The legal position can be summarised as follows. In the case of usufructuary mortgage, a plaintiff need not make any application for extension of time fixed in the preliminary decree for deposit of the amount found due. The mortgagee has no right to make an application for passing a final decree to foreclose the right of the plaintiff or sale of the mortgaged property declaring that plaintiff has been debarred from making payment in Court or proceeding further. Plaintiff usufructuary mortgagor has a right to make payment of the redemption money due under the preliminary decree and subsequent liability at any time before passing the final decree. So long as the right subsists, the right of redemption of the mortgagor is not lost even if, he defaults to deposit the redemption money. In the case of preliminary decree for redemption of usufructuary mortgage no limitation starts to run until the deposit is made. Even if plaintiff fails to deposit the amount as fixed by the preliminary decree, the period of limitation will not start to run from the date of the default or period fixed Under the preliminary decree and such failure will not debar him from exercising the right to file the final decree application. In view of these findings the order of the trial court that the final decree application is barred by time is unsustainable.
The revision is allowed. The impugned order in I.A 3139/95 in O.S 9/67 is set aside. The learned Sub Judge is directed to proceed with the final decree application and dispose of the same expeditiously without any further delay.
Revision allowed.
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