IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 CRP.NO. 404 OF 2010() ---------------------------------- E.A.NO.399 OF 2010 IN E.P. NO.80 OF 1979 IN OS.67/1957 OF ADDITIONAL MUNSIFF-II, NEYYATTINKARA REVN. PETITIONER(S): APPLICANT/CLAIM PETITIONER ------------------------------------------------------------------------------- BINU KRISHNAN, S/O.KRISHNAN NADAR, CHARIVUVILA PUTHEN BUNGLOW, CHOWARA, KOTTUKAL VILLAGE. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.NEELAKANDAN P.M. RESPONDENT(S): DECREE HOLDER/JUDGEMENT DEBTORS -------------------------------------------------------------------------------------- 1. CHELLAPPAN PILLAI, S/O.MATHEVAN PILLAI, MANALUVILA PUTHAN VEEDU ALSO HAVING PUNNAKKULATHU VEEDU, KOTTUKAL VILLAGE. 2. VELAYUDHAN NAIR, S/O.NEELAKANTA PILLAI, THEKKETHENGUVILA VEEDU ALSO HAVING PUNNAKULATHU VEEDU, KOTTUKAL VILLAGE. 3. KOCHAPPY NADAR, S/O.UMMINI NADAR, THANNI NINNA KUZHIYAMVILA URAYIDOM, CHOWARA, KOTTUKAL VILLAGE. 4. AYYAPPAN PILLAI, S/O.KRISHNA PILLAI, KARAVILAKATHU VEEDU HAVING ALSO PUNNAKULATHU VEEDU, KOTTUKAL VILLAGE. 5. AYYAPPAN PILLAI, S/O.KRISHNA PILLAI, KARAKATTUVILA PUTHAN VEEDU, HAVING ALSO PUNNAKULATHU VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 6. SANKARA PILLAI, S/O.MATHEVAN PILLAI, PANDARAVILAKATHU VEEDU, HAVING ALSO PUNNAKULATHU VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 7. AYYAPPAN PILLAI, S/O.PADMANABHA PILLAI, AYANIVILA PUTHAN VEEDU, HAVING ALSO PUNNAKULATHU VEEDU, KOTTUKAL VILLAGE. 8. RAMAN PILLAI, S/O.KRISHNA PILLAI, PANDARAVILA PULLARAVILAKATHU VEEDU HAVING ALSO PUNNAKULATHU VEEDU, KOTTUKAL VILLAGE. 9. SADASIVAN PILLAI, S/O.SIVAN PILLAI, M.S.BUNGLOW, PUNNAKULAM, KOTTUKAL DESOM, KOTTUKAL VILLAGE. 10. SANKARA PILLAI, S/O.VELAYUDHAN PILLAI, KEEZHEMOYATHOTTATHU VEEDU HAVING ALSO PUNNAKULATHU VEEDU, KOTTUKAL VILLAGE. 11. RADHAMMA PILLAI, D/O.KAMALAMMA PILLAI, PALLIVILAKATHU VEEDU, KOTTUKAL VILLAGE. 12. VALSALA, D/O.RADHAMMA PILLAI, DO. DO. 13. VENU, S/O.VELAYUDHAN NAIR, DO. DO. 14. MURALI, S/O.DO. IN DO. DO. 15. VANAJAM, D/O.RAJAMMA PILLAI, DO. DO. 16. MURUGAN, S/O.VELAYUDHAN NAIR, DO. DO. 17. KESAVAN NADAR, S/O.KOCHAPPY NADAR, THANNININNAKUZHIYANVILA PURAYIDOM, CHOWARA, KOTTUKAL VILLAGE. 18. KRISHNAN NADAR, S/O.DO. IN DO. DO. 19. SIVASANKARA PILLAI, S/O.RAMAN PILLAI, PANDARAVILA PULLARAVILAKATHU VEEDU, KOTTUKAL VILLAGE. 20. AYYAPPAN PILLAI, S/O.RAMAN PILLAI CALLED AS CHELLAPPAN PILLAI, DO. DO. 21. MANIKANTAN NAIR, S/O.SIVASANKARA PILLAI, IN DO. DO. 22. KARTHI PILLAI, D/O.KALYANI PILLAI, IN DO. DO. 23. PARAMESWARAN PILLAI, S/O.RAMAN PILLAI, IN DO. DO. 24. KAMALAMMA PILLAI, D/O.KALYANI PILLAI, IN DO. DO. 25. OMANAMMA, D/O. DO. IN DO. DO. 26. KALYANI PILLAI, D/O.KALIYAMMA PILLAI, IN DO. DO. 27. PONNAMMA PILLAI, D/O.JANAKI PILLAI, KOYITHOTTATHU VEEDU, KOTTUKAL VILLAGE. ADV. SRI.P.B.SURESH KUMAR FOR R9 SRI.LEO GEORGE FOR R9 SRI.P.B.SURESH KUMAR FOR R11 TO 16 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2010 ALONG WITH CRP NO. 466 OF 2010 AND CONNECTED CASES THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. Nos.404, 466, 468 and 478 of 2010 and W.P(C) No.28525 of 2010 ==================================== Dated this the 10th day of December, 2010 O R D E R These revisions under Sections 115 of the Code of Civil Procedure (for short, “the Code”) and Petition under Article 227 of the Constitution arise from orders passed by the learned Additional Munsiff-II, Neyyattinkara on various applications preferred by the petitioners in the revisions in E.P. No.80 of 1979 in O.S. No.67 of 1957 of that court. Judgment debtors, aggrieved by the respective orders against them have filed the revisions while additional decree holder No.3 who is respondent No.1 in the revisions has filed W. P(C) No.28525 of 2010 aggrieved by that part of the order against him. Parties are referred to as petitioners (in the revisions) and respondent No.1 (petitioner in the Writ Petition). 2. Punnakkulathu tarwad, in Neyyattinkara Taluk owned large extent of properties. While so, Easwara Pillai Krishna Pillai of the tarwad created mortgage over a plot of land called “Charivuvila Purayidom” comprised in Sy.No.478/1B and belonging C.R.P. No.404 of 2010 & connected cases -: 2 :- to the said tarwad in favour of one Padmanabhan Ummini as per a registered document dated, 14.01.1095 M.E. (marked Ext.P9 in the Writ Petition) and described as an ‘Otti Kuzhikanam Adharam’. Though extent of the property mortgaged is not specified in the document it described the property by survey number and boundaries and in some of the later documents the extent is stated as 3.25 acres while in the survey conducted in the executing court the extent was found to be 3.12 acres. There were four Sakhas in the said tarwad and for enjoyment of properties by the different Sakhas there was a Sakha partition executed between the members of the tarwad in the year, 1099 M.E. The Sakha partition was in respect of properties excluding property covered by the registered mortgage deed dated, 14.01.1095 M.E. By that time the mortgagee expired. Two junior members of the tarwad instituted O.S. No.67 of 1957 in the court of learned Principal Munsiff, Neyyattinkara for redemption of mortgage arraying Ummini Nadar Kochappi Nadar, only son of the mortgagee as defendant No.1 and the then Karanavans of the four Sakhas as defendant Nos.2 to 5. The two junior members, plaintiffs in the suit pleaded that they instituted the suit since defendant Nos.2 to 5, Karanavans of the four Sakhas were not amenable to do so and that redemption is sought on behalf of the C.R.P. No.404 of 2010 & connected cases -: 3 :- tarwad. Defendant Nos.2 to 5 did not contest the suit. Defendant No.1 hotly contested the suit raising various grounds but learned Munsiff granted a decree in the suit on March 17, 1959 (the terms of which will be adverted to later while considering contentions of parties). It is not disputed, that decree has become final. In the meantime there were several litigations initiated either by defendant No.1 or others as regards the mortgaged property and claiming right over it. There were also orders of injunction restraining the two junior members executing the decree in O.S. No.67 of 1957. After all those challenges came to an end the decree holders started execution of the decree for redemption in the year, 1961. The attempt to execute the decree was objected by defendant No.1 on the ground that in the meantime he got registry of the land from the Special Tahsildar for kandukrishi lands. That objection was upheld and the execution petition was dismissed which was confirmed in appeal. In the meantime plaintiff No.2-decree holder No.2 expired. Plaintiff No.1-decree holder No.1 filed S.A. No.846 of 1963 in this Court against defendant No.1-judgment debtor No.1. The Second Appeal was allowed as per judgment dated, July 4, 1967. Objection raised by defendant No.1 was overruled and this Court held that executing court as well as the first appellate court acted C.R.P. No.404 of 2010 & connected cases -: 4 :- erroneously and illegally in refusing to execute the decree according to its tenor. In the meantime defendant No.1, only son of the mortgagee had gifted his right in the hypotheca to his sons – Krishnan Nadar and Kesavan Nadar (1.56 acres each) as per document No.3609 of 1965. The 1.56 acres gifted to Krishnan Nadar was towards west of the entire hypotheca while the eastern 1.56 acres was given to Kesavan Nadar. After the judgment dated July 4, 1967 in S.A. No.846 of 1963, plaintiff No.1- decree holder No.1 expired. While so Krishnan Nadar settled 50 cents (out of the 1.56 acres forming the western portion of the hypotheca) in favour his daughter, Anitha Krishnan as per settlement deed No.776 of 1996. The legal heirs of deceased decree holder No.1 assigned right to execute the decree (in O.S. No.67 of 1957) and their undivided right in the mortgaged property in favour of respondent No.1 as per assignment deed Nos.2840 and 2861 of 1997. On the strength of the said assignment deeds respondent No.1 sought impleadment in the execution petition – E.P. No.80 of 1979. That was objected by the judgment debtors which prevailed in the executing court. Respondent No.1 challenged that order in C.R.P. No.2700 of 1999. By order dated November 23, 1999 this Court allowed the revision and ordered impleadment of respondent No.1 as C.R.P. No.404 of 2010 & connected cases -: 5 :- additional decree holder No.3 in E.P. No.80 of 1979. In the meantime Anitha Krishnan assigned the 50 cents she got as per settlement deed No.776 of 1996 in favour of petitioner in C.R.P. No.468 of 2010 as per document No.550 of 2001. The said 50 cents is described as situated towards south-western portion of the 1.56 acres which forms the western portion of the total extent of 3.12 acres (mortgaged property). Petitioner in C.R.P. No.468 of 2010 constructed buildings in the said 50 cents. Petitioners in C.R.P. Nos.466 and 478 are legal heirs of the deceased mortgagee. 3. In the meantime, members of the 4th Sakha of the tarwad (who are legal heirs of deceased decree holder No.2) executed assignment deed Nos.989 and 990 of 1998 in favour of one Binu Krishnan transferring their right over a total extent of 74 cents in ‘Kadappuravaram Puduval Purayidom’ comprised in Sy. Nos.478/1B (Binu Krishnan is the petitioner in C.R.P. No.404 of 2010). 4. In the meantime predecessor-in-interest of petitioners in C.R.P. Nos.404, 466, 468 of 2010 along with petitioners and respondent No.18 in C.R.P. No.478 of 2010 who were judgment debtors in E.P. No.80 of 1979 objected to execution on the ground that execution petition is barred by limitation and that C.R.P. No.404 of 2010 & connected cases -: 6 :- respondent No.1 is not entitled to execute the decree. Executing court upheld that objection and dismissed E.P. No.80 of 1979. Respondent No.1 challenged that order in this Court in C.R.P. No.756 of 2008. This Court by order dated March 26, 2010 rejected all the contentions raised by the judgment debtors – petitioners and respondent No.18 in C.R.P. No.478 of 2010 and predecessor-in-interest of petitioners in C.R.P. No.404, 466, 468 of 2010 and found that respondent No.1 - additional decree holder No.3 is entitled to execute the decree. This Court also observed that since judgment debtors or their predecessors-in- interest had failed to raise the contentions in the execution petition of the year 1961, they are precluded from raising such contention in the present execution proceeding – E.P. No.80 of 1979 on the principle of constructive res judicata. This Court directed the executing court to complete execution proceeding as expeditiously as possible and at any rate within six months from the date of receipt of the records and copy of the order. 5. In the meantime Binu Krishnan executed various assignment deeds in respect of portions of the said 74 cents. Fifteen cents was assigned to the petitioner in C.R.P. No.468 of 2010 as per assignment deed No.1832/2010 dated 13.07.2010; thirty cents was assigned to the petitioner in C.R.P. No.466 of C.R.P. No.404 of 2010 & connected cases -: 7 :- 2010 (he is also a legal heir of the deceased mortgagee) as per registered sale deed dated 14.07.2010 and another nine cents was assigned in favour of petitioners in C.R.P. No.478 of 2010 (who are also legal heirs of the deceased mortgagee) as per a registered assignment deed dated 16.07.2010. Thus out of the 74 cents which Binu Krishnan got as per document Nos.989 and 990 referred to above he assigned 54 cents in favour of petitioners in C.R.P. Nos.466, 468 and 478 of 2010. Binu Krishnan (petitioner in C.R.P. No.404 of 2010) has retained the remaining 20 cents. On the strength of the above assignment deeds Binu Krishnan (petitioner in C.R.P. No.404 of 2010) filed E.A. No.399 of 2010. He prayed for an order that he has right, title, interest and possession over the said 74 cents (notwithstanding that by that time he had assigned 54 cents out of 74 cents). Petitioner in CR.P. No.466 of 2010 filed E.A. No.709 of 2010 while petitioners in C.R.P. No.478 of 2010 filed E.A. Nos.625 and 712 of 2010. Petitioners in C.R.P. Nos.466, 468 and 478 claimed that since they have acquired undivided right of decree holder No.2, the co- mortgagor and they have also acquired either by assignment or by operation of law right of the mortgagor over the property there is fusion of right of mortgagor and mortgagee in them and hence they are not liable to be physically evicted from the suit C.R.P. No.404 of 2010 & connected cases -: 8 :- property. 6. After the order in C.R.P. No.756 of 2008, respondent No.1-additional decree holder No.3 deposited the mortgage money in the executing court on 22.7.2010 as per a memo. Petitioners thereafter filed application in the executing court objecting to the execution. Executing court while dismissing E.A. Nos.399 of 2010, 709 of 2010, 625 of 2010 and 712 of 2010 allowed E.A. No.693 of 2010 in part holding that the 74 cents over which the petitioner in C.R.P. No.404 of 2010 laid hands vide assignment deed Nos.989 and 990 of 1998 is not liable to be physically delivered to respondent No.1. Petitioner in E.A.No.399 of 2010, challenging the dismissal of that application has filed C.R.P. No.404 of 2010 while petitioner in E.A. No.709 of 2010 challenges dismissal of that application in C.R.P. No.466 of 2010. Dismissal of E.A.Nos.625 and 712 of 2010 are under challenge in C.R.P. No.478 of 2010. Petitioner in E.A. No.693 of 2010 is aggrieved to the extent that executing court ought to have found that there could be no physical delivery of possession of the entire property and not merely the 74 cents and challenging that part of the order in E.A.No.693 of 2010 has filed C.R.P. No.468 of 2010. Respondent No.1 is aggrieved by the order on E.A.No.693 of 2010 to the extent that executing court held that he is not entitled to C.R.P. No.404 of 2010 & connected cases -: 9 :- get physical delivery of 74 cents out of the decree schedule property and that part of the order is under challenge in W.P(C ) No.28525 of 2010. 7. The following contentions are raised by learned counsel for petitioners in the revision petitions: (1) The decree passed in O.S. No.67 of 1957 can only be treated as a preliminary decree and hence is not executable. At any rate the mortgage money having not been deposited within six months from the date of decree (March 17, 1959), respondent No.1 could not have deposited the mortgage money in the executing court and in the absence of trial court extending time for deposit of the said amount for good cause. (2) The decree for redemption was for and on behalf of the tarwad and hence all the members of the tarwad are co- mortgagors entitled to execute the decree. Petitioners in the revisions having acquired undivided right of the legal heirs of additional decree holder No.2 and petitioners in C.R.P. Nos.466, 468 and 478 of 2010 having acquired right of mortgagee as well they are not liable to be evicted from the decree schedule property. Remedy if any of respondent No.1 is to sue for partition and separate possession of his share in the mortgaged property. Respondent No.1 while resisting the above contentions raised the C.R.P. No.404 of 2010 & connected cases -: 10 :- following contention: (3) The assignments in favour of petitioners in the revisions are hit by Section 52 of the Transfer of Property Act (for short, “the Act”) and hence it cannot affect execution of the decree 8. Point No.1. Advocate Shri P.B. Krishnan, learned counsel for petitioners in C.R.P. Nos.404 and 466 of 2010 and Advocate Shri G.P. Shinod, learned counsel for petitioners in C.R.P. No.478 of 2010 have contended that at the time learned Munsiff passed the decree on March 17, 1959 the Code of Civil Procedure, 1908 was in force and hence the court was bound to pass a preliminary decree followed by a final decree. Learned counsel contended that in this case there is only one decree which has all the characteristics of a preliminary decree going by the tenor of the decree and Rule 7 of Order XXXIV of the Code (of 1908) and hence the decree is not executable. Further contention is that at any rate the registered mortgage deed dated 14.01.1095 M.E. being an anomalous mortgage plaintiffs were bound to deposit the mortgage money, in the absence of any time limit specified in the decree, within six months from the date of the decree. Respondent No.1-additional decree holder No.3 deposited the mortgage money in the executing court only on C.R.P. No.404 of 2010 & connected cases -: 11 :- 22.07.2010, years after the decree dated March 17, 1959 and that cannot be reckoned as a deposit as contemplated under Rule 8 of Order 34 of the Code (of 1908). It is contended that power for extension of time for deposit of the mortgage money is vested only with the trial court and not with the executing court and even the trial court could extend the time only on good cause being shown. In the present case not only that deposit was not made in the trial court, but in the execution court, there was no application for extension of time for deposit, not to say about absence of any good cause for such extension. But the amount was merely deposited as per a memo which cannot be taken into account. The decree is not executable, it is argued. It is also contended by learned counsel that the fact that the above objection was not raised at any previous stage of the proceeding either in execution or otherwise will not preclude petitioners raising the objection in execution since principle of res judicata cannot apply in the matter of jurisdiction of the court based on a pure question of law alone. Reliance is placed on the decisions in Murugesa Mudaly v. Ramasawmi Chetty (AIR 1916 Madras, 882), Gyan Singh v. Ata Husain (AIR 1921 Allahabad 56), Rev. Fr.Victor Fernandez v. Albert C.R.P. No.404 of 2010 & connected cases -: 12 :- Fernandez (1971 KLT 216), Vivekanandan v. Sadasivan (1975 KLT 1), Narayana Rao v. Laxmi Amma (1994 (2) KLT 317 (F.B.) Mohammed Abdul Khader v. Kunju Sayed (1997 [1] KLT 53 (SC), Sudeh Vithal v. Sadanand Shivrao Koppal ([1998] 8 SCC 591) and Golvindan Nair v. Abraham (2002 [3] KLT 630). 9. Learned counsel for respondent No.1, Shri P.B. Suresh Kumar contended that the above objection of petitioners cannot be entertained and at any rate cannot stand legal scrutiny. It is pointed out that predecessors-in-interest of petitioners and even the petitioners in C.R.P. No.478 of 2010 (who themselves were on record as judgment debtors) did not raise any such objection at the appropriate stage (before the present execution applications were filed in the executing court) and hence are precluded by law from raising objection regarding the executability of the decree. It is also argued that even if it is assumed that as the Code of 1908 stood as on the date of the decree (March 17, 1959) preliminary and final decrees were required to be passed but no such separate decrees were passed, there is nothing illegal in the court passing a composite decree as there was no dispute regarding the mortgage money payable, the object of passing a C.R.P. No.404 of 2010 & connected cases -: 13 :- preliminary decree being to ascertain the mortgage money and interest if any, payable thereon to the mortgagee. According to the learned counsel failure to pass a preliminary and final decree at the worst is only an irregularity which cannot be raised in the executing court. It is pointed out that the decree which is sought to be executed has all the characteristics of a final decree and there is nothing illegal in executing the same. Reliance is placed on the decisions in M.Muthiriar v. Ayyathurai (AIR 1978 Madras 246), Mosa Rajayya v. Jacob Haris (AIR 1981 Kerala 135), Nalnar Mohammed Rowther v. Minor Vijayasankar (1988 MLJ 407), Radhabai Yashwant Dhotre v. Abaji Janoji Haikodi (AIR 1995 Bombay 439), Sayeeda Khatoon v. Bibi Sayeeda Tahira Nahid (2001 [2] BLJR 1493), Aboobacker Babu Haji v. Pathummakutty Umma (2002 [2] KLT 589) and Barkat Ali v. Badri Narain (2008 [1] KLT 1022). 10. It is not very much in dispute that as on the date learned Munsiff passed the decree, the Code of Civil Procedure 1908 applied and hence this being a suit for redemption of mortgage it was required to pass a preliminary and final decree as C.R.P. No.404 of 2010 & connected cases -: 14 :- contemplated under Rules 7 and 8 of Order XXXIV of the Code of 1908. It is also not disputed that learned Munsiff passed only one decree, the one dated March 17 1959. Question is whether that decree is only a preliminary decree as contended by learned counsel for petitioners or it by itself is a final decree as contended by learned counsel for respondent No.1. To decide that, it is necessary to refer to the relevant provisions of the Code of 1908 and the decree under challenge. 11. Rule 7 of Order XXXIV of the Code, 1908 states that in a suit for redemption if the plaintiff succeeds, the court shall pass a preliminary decree ordering that an account be taken of what was due to the defendant on the date of such decree for the principal and interest on the mortgage, the costs of suit, if any awarded to him, and other costs, charges and expenses properly incurred by him upto that date, in respect of his mortgage security, together with interest thereon; or declaring the amount so due at that date. Rule 7 also required the court to direct plaintiff that if he paid into court the amount so found or declared due on or before such date as the court may fix within six months from the date on which the court confirms and countersigns the account taken the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his C.R.P. No.404 of 2010 & connected cases -: 15 :- possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant. Rule 8 of Order XXXIV refers to the passing of final decree and states that in the circumstances stated therein the court shall order the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary, ordering him to re-transfer at the cost of the plaintiff the mortgaged property, also, if necessary, ordering him to put the plaintiff in possession of the said property. 12. The operative portion of the judgment dated March 17, 1959 states as under: “In the result the plaintiffs are given a decree for redemption of the plaint property on behalf of Punnakkulathu tarwad on deposit of the mortgage amount of Rs.294.75 Np and the value of the improvements that will be assessed by the first defendant in execution. The plaintiff is allowed interest at 12% for three years from the date of service of notice of deposit of the mortgage amount and value of improvements on the first defendant or C.R.P. No.404 of 2010 & connected cases -: 16 :- till recovery of the property whichever happens first. The first defendant is allowed to draw the value of improvements that will be deposited by the plaintiffs. The first defendant is allowed his costs. Declared in open court the 17th day of March, 1959.” In accordance with the above, a decree was also drawn up. It is argued by learned counsel, Shri P.B. Krishnan and G.P. Shinod that the decree does not direct delivery of document or possession of the mortgage security to the plaintiffs which is the essential characteristics of a final decree and hence the decree cannot be treated as a final decree. It is also their argument that though the decree does not state the time within which mortgage money was to be deposited, going by Rule 7 of Order XXXIV of the Code the deposit should have been made within six months from the date of the decree. According to the learned counsel mortgage deed dated 14.01.1095 could be treated as only as an anomalous mortgage. It is in support of that contention learned counsel have placed reliance on the decisions in Rev. Fr. Victor Fernandez v. Albert Fernandez and