IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 SA.No. 115 of 1997(E) --------------------- AS.104/1990 of II ADDL.SUB COURT,TRIVANDRUM OS.459/1986 of II ADDL.MUNSIFF'S COURT,TRIVANDRUM .................... APPELLANT(S): -------------------- CHELLAPPAN CHETTIAR JANARDHANAN CHETTIAR, RESIDING AT PALLIKKAL PUTHEN VEEDU, KADAKAMPALLY VILLAGE, KADAKAMPALLY MURI. BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND RESPONDENT(S): --------------------- 1. SHEREEFA BEEVI SAUDHA BEEVI, RESIDING AT T.C 31/344, KADAKAMPALLY VILLAGE, -DO- MURY, FROM BHILAJI HOUSE, CHENGAZHASSERRY VILLAGE, CHENTHITTA WARD, TRIVANDRUM. * 2. MOHAMMED ABDUL KHADER, ALIYARUKUNJU, RESIDING AT VATTAVILAKATHU VEEDU, DELETED KADAKAMPALLY PAKUTHY, -DO- MURI. ** 3. MOHAMMED HANEEFA, MOHAMMED BASHEER, RESIDING AT MANIYANCHIRA THOPPU VEEDU, STRUCK OFF THIRUVALLAM VILLAGE, VENGANOOR DESOM. ADV. SRI.P.S.RAMESH KUMAR FOR R1 * R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 27/08/2003 ON I.A No.807/2003. ** NAME OF THE 3RD RESPONDENT IS STRUCK OFF FROM THE APPEAL AS PER ORDER DATED 29/09/2010 (VIDE SEPARATE) IN R.S.A. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2010, THE COURT ON 03/11/2010 DELIVERED THE FOLLOWING: ORDER IN I.A No. 2688/2008 DISMISSED. 03/11/2010 Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.115 OF 1997 -------------------------------- Dated this the 3rd day of November 2010 ORDER Second appeal arises from a suit for extinguishment of a mortgage filed by the mortgagor after a decree had been passed against him directing to hand over the mortgaged property to the mortgagee. Mortgage property covered by Ext.A3 deed has an extent of 12 cents, comprising a building and some shop rooms. Mortgage price fixed was Rs.13,000/-, providing for redemption after a period of three years. Admittedly, possession over the mortgage property was not given to the mortgagee though it was stated under the deed that the property was delivered over. It is also admitted that pursuant to Ext.A3 mortgage, some sale deeds were executed by the mortgagor over some portions of the mortgaged property and, from at least one of the vendees thereunder, the mortgagee had collected fractional share of the mortgage price to release the liability over the portion sold to such vendee, and, thereafter, the balance remaining as mortgage price is only Rs.10,832/-. The appellant herein/the mortgagee had instituted a suit for recovery of possession from the mortgagor in terms of Ext.A3 deed. The decree passed in that S.A No.115 OF 1997 - 2 - suit in his favour, Ext.A1, was confirmed in appeal by this court. Ext.A5 is the judgment. It is conceded that no steps had been taken so far to execute Ext.A5 decree. Pending the suit for recovery of possession, the mortgagor had instituted a suit giving raise to the impugned judgment for extinguishment of Ext.A3 mortgage deed by deposit of the balance mortgage price due under the deed. The trial court, accepting the contention raised by the mortgagee that such extinguishment was permissible only after possession is handed over to him, nonsuited the appellant/plaintiff. In appeal, the lower appellate court reversed the dismissal of the suit and granted a decree of redemption of Ext.A3 mortgage in favour of the respondent/plaintiff. That decree is under challenge at the instance of the mortgagee. 2. The appeal was argued on various aspects involved, by the counsel on both sides with reference to judicial pronouncements touching over the matter. Taking note of Ext.A5 decree passed by the court directing the handing over of possession to the mortgagee, though such a decree has not been executed, and also the facts presented in the case that the mortgagee has been deprived of possession and enjoyment of S.A No.115 OF 1997 - 3 - the mortgaged property ever since the execution of Ext.A3 deed, and further regard being given to Rule 7 Order 34 of Code of Civil Procedure in awarding interest to the mortgagee on the observation made by this court that case in hand calls for providing adequate interest to the mortgagee apart from the mortgage price from the date of Ext.A3 mortgage, counsel on both sides submitted that a reasonable sum be fixed by the court for redemption and settling of the issues for ever. I find that the mortgagee, under the circumstances involved, can reasonably claim interest at the rate of 12 % from Ext.A3 mortgage till Ext.A5 judgment rendered by this court in the suit filed by him granting a decree of recovery of possession of the mortgage property and, thereafter, having regard to the decrease in the money value from the date of execution of Ext.A3, 18% interest per annum till the mortgage price due to him was deposited by the respondent/mortgagor before the court, ie, on 31/01/2003. It could be seen that if a rough calculation is made on the above basis, the mortgagee would be entitled to get an amount of more than Rs.70,000/-, I find a sum of Rs.75,000/- which could be reasonably fixed as the amount due to the mortgagee/appellant towards interest, over and S.A No.115 OF 1997 - 4 - above his right to get the mortgage price deposited before this court. Learned counsel for the respondent submitted that he would pay the amount as indicated, to the appellant before this court so that a decree can be passed by this court avoiding any further proceeding in the suit , for redemption of Ext.A3. Learned counsel for the respondent requested for six weeks time to pay the amount as fixed above. The counsel for the appellant agreeing to the mode of settlement, however, urged for limiting the time for payment to one month. Reasonable time has to be provided to the respondent to pay the sum to the appellant. The case is adjourned to 13/12/2010, and the payment as fixed above has to be effected on or before that date. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv