IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 RSA.No.390 of 2008(D) --------------------------- AS.7/1998 of SUB COURT, CHERTHALA OS.675/1956 of PRL.MUNSIFF COURT, CHERTHALA (IA.3692/1994) .................... APPELLANT IN AS/RESPONDENT NO.4 IN IA ------------------------------------------------------ NANDAN KUTTAN, PUNCHACHIRA, VARANUM MURI, THANNEERMUKKOM NORTH VILLAGE KANNANKARA P.O. 688527. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENTS: RESPONDENTS IN RSA --------------------------------------------- 1. PANKAJAKSHI AMMA LALITHA, } D/O.BHASKARA PANICKER, }- RESPONDENT NO.3 IN A.S. POZHIYAM PURATHU HOUSE, } PETITIONER NO.3 IN I.A. VARANAM MURI, KANNANKARA P.O . } THANNEERMUKKOM NORTH VILLAGE } PIN-688527. } 2. PAPPI SAROJINI, PUNCHACHIRA, }- RESPONDENT NO.4 IN A.S. VARANUM MURI, } RESPONDENT NO.3 IN I.A. THANNEERMUKKOM NORTH VILLAGE. } KANNANKARA P.O. PIN-688527. } 3. PAPPI SUMATHI, PUNCHACHIRA, }- RESPONDENT NO.6 IN A.S. VARANUM MURI AND POST, } RESPONDENT NO.4 IN I.A. THANNEERMUKKOM NORTH VILLAGE, } PUTHENANGADY, CHERTHALA. } RSA.No.390 of 2008(D) -2- 4. NARAYANI GOMATHI, PUNCHACHIRA, }- RESPONDENT NO.7 IN A.S. VARANUM MURI, } RESPONDENT NO.5 IN I.A. THANNEERMUKKOM NORTH VILLAGE, } KANNAMKARA P.O. 688527. } 5. GOMATHI GIRIJA, PUNCHACHIRA, }- RESPONDENT NO.8 IN A.S. VARANUM MURI, } RESPONDENT NO.6 IN I.A. THANNEERMUKKOM NORTH VILLAGE } KANNAMKARA P.O. 688527. 6. GOPALAN GIREESH, PUNCHACHIRA, } -RESPONDENT NO.9 IN A.S. VARANUM MURI, } RESPONDENT NO.7 IN I.A. THANEERMUKKOM NORTH VILLAGE. } KANNANKARA P.O. 688527. 7. LEELA, W/O.SOMANATHAN, }- RESPONDENT NO.10 IN A.S. "SREEKALA", } LRs OF DECEASED POZHIYAM PURATHU OF VARANAM- } PETITIONER NO.2 IN I.A. MURI, THANEERMUKKOM } NORTH VILLAGE, } KANNAMKARA P.O. 688527. } 8. SOUMYA(MINOR), }- RESPONDENT NO.11 IN A.S. D/O SOMANATHAN, "SREEKALA", } LRs OF DECEASED POZHIYAM PURATHU OF VARANAM- } PETITIONER NO.2 IN I.A. MURI, THANNEERMUKKOM NORTH - } VILLAGE, REPRESENTED BY } GUARDIAN LEELA(MOTHER) } PIN-688527 } 9. ROY P.R., "PUTHENCHIRA HOUSE", } -LR OF DECEASED R5 IN A.S. (ANJALI) KANNANKARA P.O., } LRs OF DECEASED THANEERMUKKOM NORTH VILLAGE, } RESPONDENT NO.3 IN I.A. CHERTHALA TALUK. } PIN. -688527 } THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.390 of 2008 ------------------------------------------------ Dated this the 3rd day of July, 2008 JUDGMENT The appellant is the fourth respondent in I.A.3692/94 in O.S.675/56 on the file of the Munsiff's Court, Cherthala. It was an application for passing of a final decree in a redemption suit. The preliminary decree was passed in the said suit finally on 30/06/79 as on three prior occasions, preliminary decrees passed were set aside in appeal. However, the preliminary decree passed finally on 30/06/79 is confirmed in appeal vide judgment dt.05/08/93. Final decree application was filed on 29/11/93 after more than one year of the confirmation of the trial court decree by the appellate court vide judgment dt.05/08/93. Objections was raised to the final decree application by the appellant to the effect that the preliminary decree provided inter R. S. A. No.390 of 2008 -2- alia that application for passing of a final decree be filed within a month and that the application having not been filed within one month at least from the date of confirmation of the preliminary decree by dismissal of the appeal vide judgment dt.05/08/93 the final decree application is not maintainable and has to be dismissed. 2. The objection was overruled and final decree was passed by the trial court on 08/09/97. The said final decree was assailed in A.S.7/98 filed by the appellant before the lower appellate court. The lower appellate court dismissed the appeal concurring with the finding of the trial court that the application for passing of final decree is not barred. It is against the concurrent findings of the courts below that this R.S.A is filed. 3. The only argument that is advanced before me by the learned counsel for the R. S. A. No.390 of 2008 -3- appellant is that Article 137 of the Limitation Act has no application to application filed for passing of a final decree in a redemption suit and that the mortgagors/respondents having not complied with the directions in the preliminary decree to file application for passing of a final decree within one month the application is barred and no final decree could have been passed allowing the said application. 4. It is not in dispute that the mortgagors namely the first respondent, the predecessors of respondents 7 and 8 and the first respondent in the lower court who was the first petitioner in I.A.3692/94 who is reported dead, but whose L.Rs are not made mention of in this R.S.A had filed an application for passing of a final decree within one month from the date of preliminary decree, but that was dismissed for default. R. S. A. No.390 of 2008 -4- However, as contended, the present application for passing of final decree is filed only after more than a year namely on 29/11/94 as the decree of the appellate court confirming the preliminary decree passed by the trial court is dt.05/08/93. The arguments advanced by the learned counsel for the appellant are not at all tenable or sound in view of the decision of the Apex Court in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda (AIR 2003 SC 1017) wherein it was held that there is no limitation in the matter of applying for final decree being passed when preliminary decree for redemption has been passed for redemption of a usufructuary mortgage. The said decision is followed also by this Court in Santhappu Ali v. Bhaskaran (2005(1) KLT 819). In view of the position of law so held, the contention that the application for passing of final decree is barred by limitation is not at all tenable and R. S. A. No.390 of 2008 -5- is repelled. 5. No other argument is advanced before me by the learned counsel for the appellant in this R.S.A. Hence, there is no merit in this R.S.A and there is no question of law and much less any substantial question of law arising for consideration in this R.S.A. 6. In the result, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-