IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 RSA.No. 1060 of 2008() ---------------------- AS.51/2006 of DISTRICT COURT,TRIVANDRUM OS.1189/1982 of PRINCIPAL .MUNSIFF COURT,TRIVANDRUM (IA 5963/2000) .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------- AMMU SUMATHY, D/O.AMMU, HINDU AGED 57 YEARS, RESIDING AT MADAMPARA VILA PUTHUVAL PUTHEN VEEDU, MONNAMOODU, RANDAMADA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN RESPONDENT(S): RESPONDENT/LR.OF PLAINTIFF ---------------------------------------------------------------------- MOHANAN, AGED 43 YEARS, RESIDING AT BLOCK NO.70, HARIJAN COLONY, AMMANKOVIL, PIRAVANNOOR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1060 OF 2008 =========================== Dated this the 30th day of November,2011 JUDGMENT Defendant, the counter petitioner in I.A.5963/2000, an application filed by the respondent plaintiff petitioner, the mortgagor to pass a final decree for redemption in terms of the preliminary decree is the appellant. A preliminary decree for redemption was passed by the trial court on 30.7.1985. Though appellant challenged it in A.S.110/1987, the appeal was disposed on 17.3.1994 confirming the preliminary decree but providing that the value of improvements and the claim for kudikidappu are to be resolved by the executing court. I.A.5963/2000 was filed by the plaintiff to pass a final decree. The mortgage money of Rs.350/- was deposited by chalan No.86 RSA No.1060/2008 2 dated 11.7.2000. Appellant filed an objection contending that respondent has no right to file an application and in any case he is a kudikidappukaran entitled to the protection of Kerala Land Reforms Act and as the application was filed after a period of three years from the date of the preliminary decree it is barred. 2. Learned Munsiff passed a final decree on 13.7.2004 leaving the claim for kudikidappu to be settled at the execution stage as directed by the preliminary decree as confirmed in A.S.51/2006. Appellant challenged it before District Court in A.S.51/2006. Learned District Judge relying on the decision of the Apex Court in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda (AIR 2003 SC 1017) upheld the final decree and dismissed the appeal. It is challenged in the Second Appeal. 3. Learned counsel appearing for the appellant was heard. 4. The argument of the learned counsel is that Rule 7 and 8 of Order XXXIV of the Code of Civil RSA No.1060/2008 3 Procedure is not applicable to Kerala in view of the specific provision in the Kerala Amendment Act and as no application for passing a final decree was filed within three years from the date of the preliminary decree, the application is barred by time. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. The preliminary decree for redemption was passed on 30.7.1985. The mortgage was created on 22.5.1971. When the preliminary decree was passed, the Code of Civil Procedure provides for passing a final decree. The fact that subsequently the Code was amended enabling to pass a composite decree avoiding the need to pass a preliminary decree and thereafter a final decree does not mean that the preliminary decree passed on 30.7.1985 is invalid or redundant and pursuant to the preliminary decree,a final decree cannot be passed. Therefore the argument of the learned counsel that the RSA No.1060/2008 4 decision of the Apex Court in Achaldas Durgaji Oswal's case (supra) cannot be applied is not sustainable. The question has been finally concluded by the Apex Court in the said decision and it was rightly followed by the learned District Judge. The argument raised by the appellant that an application for final decree should have been filed within three years from the date of the preliminary decree has already been answered by the Apex Court holding that an application for passing the final decree could be filed before the expiry of the period for redemption. In such circumstances the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006