IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 RFA.No. 408 of 2005() ------------------------------ OS.158/1993 of IST ADDL.SUB COURT,ERNAKULAM .......................................................................................... APPELLANTS / PLAINTIFFS: ---------------------------------------- 1. L.K. PRABHU, SON OF LATE `LEKSHMANA' PRABHU, RESIDING AT LEKSHANA, CONVENT ROAD, ERNAKULAM, KOCHI-35. 2. MRS. SOBHA P.PRABHU, `LEKSHANA', CONVENT ROAD, ERNAKULAM, KOCHI-35. 3. DR. L.P.PRABHU, `LEKSHANA', CONVENT ROAD, ERNAKULAM, KOCHI-35. BY ADVS. SRI.T.B.THANKAPPAN SMT.ALICE THOMAS RESPONDENT / DEFENDANT: ------------------------------------------ THE STATE BANK OF INDIA, ERNAKULAM SOUTH, REPRESENTED BY ITS MANAGER, ERNAKULAM, KOCHI-16. BY ADV. SRI.GEORGE THOMAS (MEVADA) FOR R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N M.N. KRISHNAN, J. ........................................... R.F.A.NO.408 OF 2005 ............................................. Dated this the 2nd day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.158/1993 of the Additional Subordinate Judge's Court, Ernakulam. The suit is one for accounting and damages. The plaintiffs have been non-suited and they have preferred the appeal. 2. The brief facts necessary for the disposal of the appeal are stated as follows: The plaint schedule property namely Windsor Estate extending more than 525 acres belonged to four persons as per a compromise decree passed in O.S.No.36/1956 of the Subordinate Judge's Court Ootacamund. The same was purchased by the first plaintiff George Philip, his wife etc. There were valuable trees in the property. The first plaintiff and others had equal right in that property. It is contended that there had been an equitable mortgage created by the plaintiffs with respect to the property. There was a mediation and as per Ext.A1, PW1 has released his 1/8th : 2 : R.F.A.NO.408 OF 2005 share in favour of George Philip, another co-owner, who in turn agreed to repay the amount outstanding in the loan account of PW1 with Bank of Cochin Ltd and also to pay Rs.10,000/= with interest to PW1. The bank also filed two suits and it was settled and the bank permitted to cut and remove the trees from the property. It is the case of the first plaintiff that he had executed an equitable mortgage with respect to the property. According to him, the first defendant had undertaken to discharge the liability and also to pay paid Rs.10,000/=. When the first defendant has not complied with that, it is contended that the bank should not have allowed the first defendant to cut and remove the trees. It is seen from the materials available that PW1 has released his right in favour of George Philip under Ext.A1 agreement as well as under Ext.A3 release deed. The release deed convincingly would establish that PW1 has released his right. So when a person having right over the property releases his right by virtue of a registered instrument, it has to be stated that even if there is a mortgage, the person who purchases that right will step into shoes of the mortgagor : 3 : R.F.A.NO.408 OF 2005 and therefore the person who had pre-existing right has nothing to do with the property or in other words, the mortgage runs with the land and therefore in whose ever possession or agreement the matter comes, he will be entitled to get that right over the property. It has also to be remembered that there was no question of parting with possession for the reason that it was only an equitable mortgage created. So when the equitable mortgage with the consent of the bank had been received by the bank from the first defendant, then the first defendant becomes the owner with respect to that right over the property and legally entitled to deal with the property. Therefore, I find that the bank did have the legal right in releasing or granting permission to cut the trees from the property. So, it has to be held that permission granted by the bank is only in accordance with law. 3. The learned Subordinate Judge has also found that there is limitation as well as defect in the suit for the reason that a suit of that nature is not maintainable. Whatever it may be, on merits itself I find that the plaintiffs are not entitled : 4 : R.F.A.NO.408 OF 2005 to succeed. Therefore the judgment and decree of the lower court do not call for any interference. The appeal lacks merit and hence, dismissed without costs. M.N. KRISHNAN, JUDGE. cl : 5 : R.F.A.NO.408 OF 2005 M.N. KRISHNAN, J. ........................................... A.S.NO.883 OF 1996 ............................................. 13th day of August, 2010. J U D G M E N T