IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 AS.No. 325 of 1996() ------------------------------ OS.34/1991 of SUB COURT, KASARAGOD .................... APPELLANT(S): PLAINTIFFS ---------------------- 1. B.SUSHEELA, W/O. B.VARADARAYA PAI, ENMAKAJE VILLAGE, P.O. PERLA, KASARAGODE TALUK. *2. B.SURESH PAI, S/O. VARADARAYA PAI, PERLA P.O., KASARAGODE. 3. B.V.KISHORE, DO. DO. 4. ANANTHESHWARA PAI, DO. DO. 5. NAGARATHNA B.V., DO. DO. 6. CHANDRASEKHARA B.V., DO. DO. 7. MANJUNATHA B.V., DO. DO. 8. GANESHA B.V., DO. DO. *9. MAHALASAPRASANNA, D/O. B.VARADARAJA PAI, DO. DO. *IT IS RECORDED THAT THE IST APPELLANT EXPIRED AND THAT THE APPELLANTS 2 TO 9 (WHO ARE ALREADY IN THE PARTY ARRAY) ARE HER LEGAL REPRESENTATIVES VIDE ORDER DTD. 12.2.2009. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J.VADAKKEN SRI.V.SIVASWAMI SRI.P.V.LOHITHAKSHAN RESPONDENT(S): DEFENDANTS ------------------------- 1. SHIVARAYA KAYARTHAYA, RESIDING IN PILLINGALLU, KATTUKUKKE VILLAGE, KATTUKUKKE P.O., PERLA VIA, KASARAGODE TALUK. 2. LAXMI, W/O. GOPALA NAIK, PILLINGALLU, KATUKUKKE VILLAGE, KATTUKUKKE P.O., PERLA (VIA), KASARAGODE TALUK. 3. USHA, D/O. GOPALA NAIK, (MINOR) REP.BY THROUGH MOTHER GUARDIAN LAXMI, DO. DO. 4. PUTTA (MINOR), REP.BY THROUGH MOTHER GUARDIAN LAXMI, DO. DO. R1 TO R4 BY ADV. SRI.K.G.GOWRI SHANKAR RAI THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 325 OF 1996 = = = = = = = = = = = = = = = Dated this the 7th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kasaragod in O.S.34/91. The suit is one for redemption of the plaint B schedule property with excess profits. The Court below on a consideration of the materials held that there is no such right and dismissed the suit. It is against that decision the plaintiffs have come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows. One B. Varadaraya Pai purchased plaint B schedule property in Court auction and his legal representatives are the plaintiffs who have moved the suit for redemption of the mortgage. A.S. 325 OF 1996 -2- The first defendant is the 2nd mortgagee and D3 to D5 are the legal representatives of D2. There were three items of property which were mortgaged under Ext.A1 under document No.432/74. The mortgagors were Ramachandra Bhat, Rajagopal and Mohana Kumar and the mortgagees Narayana Kayarthaya and Sivarama Kayarthaya. The right of Narayana Kayarthaya had been transferred in favour of Sivarama Kayarthaya and thereby he has become the mortgagee of the property. Then the mortgagors assigned other than the B schedule property to the mortgagee by virtue of Ext.A6 and thereby they became the owners of the property. So the only item which remains to be considered is the B schedule. It is this B schedule property that was put in Court auction for the recovery of a decree debt under a small cause suit and the plaintiffs' predecessors had A.S. 325 OF 1996 -3- purchased it in Court auction and he has got the sale certificate. When he moved an application for delivery of the property there was an obstruction by the first defendant and the Court by virtue of a considered order held that the decree holders are only entitled to get symbolic delivery of the property. So there was only a symbolic delivery which means that they had stepped into the shoes of the mortgagor and the defendant has become the mortgagee under that mortgagor. It is under those circumstances the mortgage is requested to be redeemed. The learned trial judge held that as per the recitals in Ext.A1 the mortgagee is bound to pay 162½ kgs of arecanut per year and therefore the Court came to the conclusion that as it has not been paid and as it is adjusted towards the principal the mortgage debt has become wiped off A.S. 325 OF 1996 -4- and therefore u/s 62 of the Transfer of Property Act there cannot be any redemption as prayed for. Now it is absolutely necessary to note the recitals in Ext.A1 for a better understanding of the case. 2. Recitals in Ext.A1 make it crystal clear that, “After the term of this illidarwar deed i.e., on 5.6.1984 or after I will make the payment of the principal amount and interest and also for the improvements the amount estimated by the four prominent persons of locality after deducting the arrears of payment with interest with regard to arecanuts if any and release the said property with my own expenses.” So it is very clear from Ext.A1 that one is entitled to be in possession of the property A.S. 325 OF 1996 -5- till 1984 or till the payment is made. It is not a condition that 162½kgs. of arecanuts which is to be paid to the mortgagor is to be appropriated towards the principal amount and when the principal amount gets extinguished it will be an end to the mortgage. But the recitals makes it very clear that the amount has to be ascertained with improvements in the presence of four prominent persons and adjustment has to be done with respect to 162½ kgs. of arecanuts every year and thereafter a release has to be obtained at the expenses of the mortgagor. 3. The learned trial judge relied on S.76 (h) of the Transfer of Property Act which states about the liability of mortgagee in possession. A reading of S.76(h) and applying the same to the facts of the case would reveal that it is A.S. 325 OF 1996 -6- not applicable to the present case. So neither S.62 nor S.76(h) will be applicable but it will be S.60 of the T.P.Act that will be applicable, i.e on tendering the amount after the period etc. the mortgagor will be entitled to redeem the mortgage. Therefore the Court below has gone wrong in holding that S.76(h) will apply. On facts also it has to be stated that there is no case for the defendant anywhere in the written statement regarding the discharge and thereby the mortgage is ceased to be redeemed. 4. According to the first defendant in his written statement the contention is that he is not at all liable to pay any amount as there was total crop failure and therefore the question of adjustment really is not raised by the defendant but it was only the Court which came to such a conclusion. Therefore I find A.S. 325 OF 1996 -7- that the mortgage is liable to be redeemed in accordance with law. 5. The next question is regarding the bar u/s 47. The plaintiffs had obtained a decree and in execution of the decree this property has been sold in auction and it has been purchased and a sale certificate is obtained by the plaintiffs with respect to this property. It is then put into execution for delivery of the property. Then the first defendant raises a contention that the plaintiffs are not entitled to get delivery of the property. The Court considered the position of the plaintiffs and the first defendant as that of a mortgagor and mortgagee and held that the plaintiffs are entitled to only get symbolic delivery of the property and closed that execution petition. So the learned counsel for the appellants would A.S. 325 OF 1996 -8- contend before me that the plaintiffs should have agitated that matter in the execution proceedings itself and it was an issue which was to be settled u/s 47 of the Code of Civil Procedure. I am not in a position to agree with that contention at all for the reason that the position of the plaintiffs in this case has become that of the mortgagor and the right is to get redemption of the mortgage which is not a question that can be decided in a petition for delivery under the Code of Civil Procedure. S.47 only deals with such rights which will make the issue final and in this case the scope of inquiry to be done was far beyond the scope u/s 47 of the Code of Civil Procedure and therefore S.47 can never operate as a bar to the plaintiffs in the case. Therefore that finding also requires to be vacated and I do so. A.S. 325 OF 1996 -9- 6. Now the next question is regarding the decree to be passed. When a decree is to be passed the mortgage amount has to be determined. As per the recitals in the document adjustments are also possible including the entitlement to get the value of improvements etc. Since only a composite decree is passed now-a-days it is necessary to adjudicate that question before passing a decree in the matter. Therefore I make it very clear that the parties are entitled to raise the contentions other than the right to redemption and also the bar u/s 47. All other matters can be probed into and a decision can be taken by the trial Court so far as it relates to passing a decree for redemption. Even if a preliminary decree is to be passed let these points be considered. A.S. 325 OF 1996 -10- 7. Therefore the judgment and decree are set aside and the matter is remitted back to the trial court for consideration of the materials mentioned in the previous paragraphs of the judgment. Parties are directed to appear before the Court below on 13.8.2010 for further trial in accordance with the directions. M.N. KRISHNAN, JUDGE. ul/- A.S. 325 OF 1996 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 325 OF 1996 = = = = = = = = = = = J U D G M E N T 7th July, 2010.