IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 RSA.No. 409 of 2009() --------------------- AS.130/2005 of ADL.SUB COURT, THALASSERY OS.588/1987 of PRL.M.C.,KANNUR (EA 211/2002 IN EP 306/2001) .................... APPELLANT/APPELLANT/3RD PARTY ---------------------------------------- G.V.GANGATHARAN S/O.GOVINDAN, AGED 60 YEARS, KANNUR AMSOM KANNUKARA, KANNUR DISTRICT. BY ADV. SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENTS/RESPONDENTS ----------------------------------- 1. N.P.ASMABI, D/O.HUSSAIN, AGED 50 YEARS 2. EASSU, S/O.MOHAMMED, AGED 45 YEARS 3. ZAIBUNISSA, D/O. MOHAMMED, AGED 40 YEARS 4. JAMEELA D/O. DO...AGED 35 YEARS 5. RAIZA,D/O. DO...AGED 30 YEARS RESPONDENTS 1 TO 5 ARE RESIDING AT PALLIKUNNUAMSOM CHLLAD DESOM 6. K.V.SRIDHARAN NAIR, S/O.KANNAN NAIR DIED 7. N.P.ABDUL HAMMED, S/O.MOHAMMED, AGED 50 YEARS, PALLIKUNNU AMSOM, CHALAD. 8. SAIBU V.P., W/O.LATE ABDUL SALAM, AGED 40 YEARS, AMINAS, NEAR MTM SCHOOL,KANNUR. 9. SHABEENA KALIL V.P., D/O. DO... AGED 35 YEARS. 10. SAJNA V.P. D/O. DO... AGED 30 YEARS 11. SAJIN V.P., S/O.DO...AGED 25 YEARS RESPONDENTS 9 TO 11 ARE RESIDING AT AMINAS, NEAR MTM SCHOOL, KANNUR. SUPPL: 12. P.T.PADMINI ,W/O.K.V.SREEHARAN NAIR (LATE) AGED 60 YEARS. 13. P.T.ANITHA, D/O. DO.. AGED 40 YEARS 14. P.T.SREELATHA, D/O. DO.. AGED 40 YEARS 15. P.T.RAJASREE D/O.DO.. AGED 34 YEARS, ( SUPPLEMENTARY RESPONDENTS NO 12 TO 15 ARE RESIDING AT P.T.HOUSE, NEAR GOVERNMENT TOURIST BANGLOW, PAYYAMBALAM, KANNUR DISTRICT.) MOHAMMED MUSTAQUE FOR R1 (CAVEAT PETITIONER) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 904 OF 2009 IN R.S.A. NO. 409 OF 2009 DISMISSED SD/- HARUN- UL-RASHID, JUDGE 26.5.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.409 of 2009 ---------------------------------------- Dated this the 26th day of May, 2009 JUDGMENT This Regular Second Appeal is directed against the order dated 17.6.2005 in E.A. No. 211/202 in E.P. No. 306/2001 in O.S. No. 588/1987 on the file of the Munsiff Court, Kannur,which was confirmed by the lower appellate court. The appellant herein is a third party in the Original Suit, Appeal suit , Execution petition and in the Execution Application. The suit was filed for redemption of mortgaged building from the mortgagee Sri.K.V. Sreedharan Nair. 2. The parties hereinafter referred to as appellant and respondents. It is the case of the appellant the the plaint schedule building was obtained on lease by him on the basis of cooli chit executed in favour of Sreedharan Nair about 15 years back . It is contended by him that he was not a party to the suit and therefore the judgment passed by the trial court in O.S. 588/1987 is not binding upon him. According to him he can be evicted only as per the provisions of the Kerala Buildings (Lease and Rent control) Act and also prayed for dismissal of the application for Execution Petition. 3. The respondents interalia contended that the appellant is not a tenant with respect to the plaint schedule building and the said Sreedharan Nair has no right to create such a lease, that the trial court decree is binding upon the appellant/judgment debtor and all persons R.S.A. 409 of 2009 -2- claiming under him. 4. The trial court examined all the questions raised in the Execution Application on the basis of evidence and the reasons stated in the decree and judgment passed in the original side. The execution court held that on the redemption of mortgage the entire right created over the mortgaged property by the mortgagee comes to an end and therefore the appellant claiming under the mortgagee is not entitled to any relief . It is a settled law that “the mortgagor on redemption of mortgage gets back his own right and not as the successor-in-interest of the mortgagee. Interest if any created by the mortgagee on the mortgagor's right must disappear on ceasing of interest of the mortgagee” The execution court also found that the appellant has no case that the lease created in favour of the appellant by the mortgagee has been ratified by the decree holder. It also noticed the fact that the mortgage deed executed by the mortgagor does not permit the mortgagee to create any interest with respect to the property mortgaged. Therefore the execution court came to a conclusion that the appellant cannot claim any tenancy right or protection under the provisions of the Kerala Building( Lease and Rent Control) Act . 5. In the appeal filed by the appellant the same questions were re-agitated before the lower appellate court. . The lower appellate court after considering the entire facts and materials and following the principles R.S.A. 409 of 2009 -3- laid down by the Supreme court's decision in Corona Shoe Company limited Vs. Bhaskaran Nair reported in 1989 (2) KLT 306 SC held that “ Except in cases where leases specifically and categorically make exceptions in favour of the tenants that they would continue to be in possession even after the expiry or termination of the mortgage and those leases are acts of prudent management, the tenants inducted by the mortgagee would be entitled to the protection under the Rent Act after the redemption of mortgage and in no other cases. It must be understood that so long as the mortgage subsisted, there was relationship of tenant and landlord. It could not be so after the mortgage was redeemed”The lower appellate court concluded that interest if any , created by the mortgagee on the mortgagor's right must disappear on ceasing of interest of the mortgagee. The courts below considered the questions in the right angle and held that the appellant has no right to continue and enjoy the mortgaged premises. I am of the view that the views expressed by the courts below are correct and tenable . I find no reason to interfere with the judgments passed the courts below and to invoke Section 100 of the C.P.C This Second appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.409 of 2009 ---------------------------- JUDGMENT 26th May 2009