IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 CRP.No. 675 of 2009() --------------------- EA NO.487/2009 IN EP NO.47/2009 IN OS.235/1995 of SUB COURT, MUVATTUPUZHA .................... REVN. PETITIONER(S): DECREE HOLDER IN THE EP -------------------------------------------- MATHAI, S/O.OUSEPH, AGED 82 YEARS, THAKKIRICKALKUDY, CHELADU KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.PATHROSE, S/O.MATHAI, AGED 54 YEARS, THAKKIRICKALKUDY, CHELADU KARA, KOTHAMANGALAM VILLAGE,KOTHAMANGALAM. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): JUDGMENT DEBTORS IN THE EP ----------------------------------------- 1. JOSEPH, S/O.ULAHANAN, AGED ABOUT 72 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. 2. GRACY, D/O.JOSEPH, AGED ABOUT 44 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. 3. THANKACHAN, S/O.JOSEPH, AGED ABOUT 43 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. 4. SUSY, D/O.JOSEPH, AGED ABOUT 42 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. 5. SOJAN, S/O.JOSEPH, AGED ABOUT 38 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. CRP NO.675/2009 2 6. SAJI, S/O.JOSEPH, AGED ABOUT 35 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. 7. TESSY, D/O.JOSEPH, AGED ABOUT 32 YEARS, RESIDING AT EENTHUMKAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM TALUK. ADV. SRI.TPM.IBRAHIM KHAN FOR R1 TO R7 SRI.N.NIRUP KUMAR FOR R1 TO R7 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.675 of 2009 -------------------------------------- Dated this the 12th day of July, 2010. ORDER Petitioner, based on mortgage deed No.2097 of 1968 dated 29.07.1968 obtained Annexure-A2, decree on 31.08.2000 from the Sub Court, Thodupuzha in O.S.No.235 of 1995 for redemption of that mortgage. Decree directed petitioner to deposit Rs.1,000/- being the mortgage money and Rs.14,17,826/- being value of improvements payable to the respondents within three months from date of decree. Decree also directed that on deposit of the said amounts mortgage would stand redeemed and if the amount is not deposited on time it is open to respondents/judgment debtors/defendants to move the execution court to re-assess value of improvements and petitioner will be liable to pay the amount thus assessed. In the meantime territorial jurisdiction over the suit property was conferred on learned Sub Judge, Muvattupuzha and thereon petitioner got the decree certificate transferred to that court for execution of the decree and execution petition was filed in the year 2009. Execution petition was opposed by the respondents contending that since there is no preliminary decree passed in the case, Annexure-A2, decree cannot be executed and further that application filed by petitioner seeking permission to deposit mortgage money and for re-assessment of value of improvements payable to respondents was filed beyond three years of Annexure-A2 (dated 31.08.2000) and hence that application and execution petition are barred by CRP No.675/2009 2 limitation under Article 137 of the Limitation Act (for short, “the Act”). Objection was upheld by the executing court and execution petition was dismissed vide order dated 30.11.2009. That order is under challenge. It is contended by learned counsel for petitioner that findings entered by court below are not correct. According to the learned counsel in view of Rule 5 of Order XXXIV of the Code of Civil Procedure (for short, “the Code”) as amended by Kerala Amendment (vide K.G.No.46 dated 20.11.1990) there is no necessity to pass a preliminary decree followed by a final decree and a composite decree for redemption is permitted and valid. It is also the contention of learned counsel that petitioner was entitled to deposit the mortgage money at any time before mortgagor-mortgagee relationship was terminated either by decree of court or by act of parties and that having not been done, application filed in the year 2009 was well within the time. Reliance is placed on the decision in Santhappu Ali v. Bhaskaran (2005(1) KLT 819). Learned counsel for respondents supported order of the executing court. 2. It is not disputed that Annexure-A2, decree was passed on 31.08.2000 subsequent to the Kerala amendment to Rule 5 of Order XXXIV of the Code on 20.11.1990 and hence that amended provision governed the decree. In the decision referred above (in paragraph No.17) this Court has pointed out that after Kerala amendment referred to above, a composite decree CRP No.675/2009 3 could be passed. Hence, executing court is not correct in observing that since there is no preliminary decree, Annexure-A2, decree could not be executed. 3. Then the question is whether execution petition and application for permission to deposit the mortgage money and re-assessment of value of improvements is barred by limitation. It is true that Annexure-A2 , decree directed deposit of the amount within three months from date of that decree (31.08.2000) but that has not been complied. But it is not disputed that the mortgage is a usufructuary mortgage. This Court in Kunjamma v. Bhageerathy Amma (1990 (1) KLT 504) has held that deposit can be made either within time provided in the preliminary decree or within period of limitation provided in Article 61 of the Act. Here period of mortgage as per document No.2097 of 1968 is 30 years and that period would expire on 28.07.1998. Period of limitation prescribed under Article 61 of the Act for a suit for redemption is 30 years which period would begin to run from 28.07.1998. It follows that execution petition and application for deposit of mortgage money and to re-assess value of improvements payable to respondents filed are within time at a time when mortgagor-mortgagee relationship continued. On both counts view taken by learned Sub Judge is erroneous and cannot be sustained. Resultantly this revision petition is allowed and order dated 30.11.2009 on E.A.No.487 of 2009 in E.P.No.47 of 2009 in O.S.No.235 of 1995 of the court CRP No.675/2009 4 of learned Sub Judge, Muvattupuzha is set aside. I find that application and execution petition are maintainable and filed within time. Executing court shall proceed with E.A.No.487 of 2009 and E.P.No.47 of 2009 as provided under law. I.A.No.3644 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks