Case: SHRI GOWRAMMA AND ANR Vs. SHRI KALINGAPPA (D) REPRESENTED BY LRS. AND ORS

submitted that, in the facts and circumstances of the case, the High Court has committed an error in holding that the mortgage was extinguished. 3.1 It is vehemently submitted by the learned counsel appearing on behalf of the Appellants that, as provided under Section 60 of the TP Act, till Shera (endorsement) is written on the mortgage deed or an acknowledgement in writing that the mortgage has been extinguished and got registered, there is no redemption in the mortgage in the eyes of law. It is submitted that in the present case such is not the case and, therefore, both the Courts below rightly decreed the suit for redemption of the mortgage. It is submitted that, therefore, the High Court committed a grave error in setting aside the concurrent findings of both the Courts below. 3.2 It is further submitted by the learned counsel appearing on behalf of the Appellants that, as such, in the present case, though there was a decree in favour of Kalingappa in O.S. No. 48 of 1983 for specific performance of the agreement to sale dated 26.4.1982, however, thereafter, he did not execute the decree and, in fact, the Execution Petition was dismissed as not pressed and, therefore, the right of Kalingappa under the decree passed in O.S. No. 48 of 1983 was extinguished and, therefore, the right of the mortgagor to redeem the mortgage was saved/survived. It is submitted that, therefore, the plaintiffs – legal heirs of the mortgagor were entitled to redeem the mortgage and, therefore, they rightly filed the suit for redemption of the mortgage. 3.3 Making the above submissions, it is prayed to allow the present Appeal. 4. Learned counsel appearing on behalf of Respondent Nos. 1 to 4 – legal heirs of deceased Kalingappa has supported the impugned judgment and order passed by the High Court. 4.1 It is vehemently submitted by the learned counsel appearing on behalf of original Defendant No. 1 (since dead and now represented through his legal heirs) that considering Proviso to Section 60 of the TP Act and considering the fact that Kalingappa paid the mortgage amount of Rs.3,000/- to Sundarasetty – mortgagee assignee and Kalingappa was put in possession, the High Court has rightly observed and held that the mortgage was extinguished by the act of the parties. It is submitted that, therefore, the High Court has rightly dismissed the suit for redemption of the mortgage. Therefore, it is prayed to dismiss the present appeal. 5. Heard the learned counsel appearing on behalf of the respective parties at length. 5.1 At the outset, it is required to be noted that Sundarasetty was assigned the mortgage by the original mortgagee – Bangarasetty and, in fact, he was also put in possession of the land in question. It is true that Kalingappa – the mortgagee earlier filed a suit for specific performance and there was a decree in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983. However, the Execution Petition filed by Kalingappa was dismissed as not pressed and, therefore, his rights under the judgment and decree passed in OS No. 48 of 1983 for specific performance of the agreement to sell dated 26.4.1982 was extinguished. Therefore, thereafter the question was only with respect to the mortgage. As observed hereinabove, in the year 1982, the original Mortgagee – Bangarasetty assigned the mortgage in favour of Sundarasetty and, therefore, Sundarasetty became the mortgagee assignee and, in fact, he was also put in possession of the suit land. It is required to be noted that the decree passed by the learned Court of Munsiff and Additional JMFC in OS No. 48 of 1983 was in two parts. The first part was for specific performance of the agreement to sell in favour of Kalingappa. The second part was in favour of the mortgagee/mortgagee assignee and the mortgagee/mortgagee assignee were directed to receive the mortgage amount and to return the mortgage deed with the Shera (endorsement) and to handover the suit property to the plaintiff – Kalingappa. It appears that, pursuant to the second part of the judgment and decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/- being the mortgage amount to Sundarasetty – mortgagee assignee and in turn Kalingappa was put in possession thereof. In view of the factual situation and considering the Proviso to Section 60 of the TP Act, the High Court has rightly observed and held that by the act of the parties, namely, by act of Sundarasetty receiving Rs.3,000/- being the mortgage amount from Kalingappa and putting him in possession, the mortgage is extinguished. The submission on behalf of the Appellants – original Plaintiffs that the mortgage can be said to have been extinguished only in a case where there is a Shera (endorsement) written on the mortgage deed or an acknowledgment in writing that the mortgage is extinguished and got registered, there is no redemption in the mortgage in the eyes of law is concerned, the aforesaid has no substance, considering Proviso to Section 60 of the TP Act. Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. In the present case, by act of the parties, i.e. on Sundarasetty – mortgagee assignee receiving Rs.3,000/- being the mortgage amount from Kalingappa and by putting him in possession, as rightly observed by the High Court, the mortgage is extinguished and, therefore, the suit for redemption of the mortgage preferred by the Appellants herein – original plaintiffs was not maintainable. No error has been committed by the High Court in dismissing the suit for redemption of the mortgage preferred by the Appellants herein-original plaintiffs. We are in complete agreement with the view taken by the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5.1 At the outset, it is required to be noted that Sundarasetty was assigned the mortgage by the original mortgagee – Bangarasetty and, in fact, he was also put in possession of the land in question. It is true that Kalingappa – the mortgagee earlier filed a suit for specific performance and there was a decree in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983. However, the Execution Petition filed by Kalingappa was dismissed as not pressed and, therefore, his rights under the judgment and decree passed in OS No. 48 of 1983 for specific performance of the agreement to sell dated 26.4.1982 was extinguished. Therefore, thereafter the question was only with respect to the mortgage. As observed hereinabove, in the year 1982, the original Mortgagee – Bangarasetty assigned the mortgage in favour of Sundarasetty and, therefore, Sundarasetty became the mortgagee assignee and, in fact, he was also put in possession of the suit land. It is required to be noted that the decree passed by the learned Court of Munsiff and Additional JMFC in OS No. 48 of 1983 was in two parts. The first part was for specific performance of the agreement to sell in favour of Kalingappa. The second part was in favour of the mortgagee/mortgagee assignee and the mortgagee/mortgagee assignee were directed to receive the mortgage amount and to return the mortgage deed with the Shera (endorsement) and to handover the suit property to the plaintiff – Kalingappa. It appears that, pursuant to the second part of the judgment and decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/- being the mortgage amount to Sundarasetty – mortgagee assignee and in turn Kalingappa was put in possession thereof. In view of the factual situation and considering the Proviso to Section 60 of the TP Act, the High Court has rightly observed and held that by the act of the parties, namely, by act of Sundarasetty receiving Rs.3,000/- being the mortgage amount from Kalingappa and putting him in possession, the mortgage is extinguished. The submission on behalf of the Appellants – original Plaintiffs that the mortgage can be said to have been extinguished only in a case where there is a Shera (endorsement) written on the mortgage deed or an acknowledgment in writing that the mortgage is extinguished and got registered, there is no redemption in the mortgage in the eyes of law is concerned, the aforesaid has no substance, considering Proviso to Section 60 of the TP Act. Considering Section 60 of the TP Act, mortgagor has a right to redeem the mortgage as provided under first part of Section 60 of the TP Act, however, provided the right conferred in favour of mortgagor has not been extinguished by act of the parties or by decree of the Court, as per Proviso to Section 60 of the TP Act. In the present case, by act of the parties, i.e. on Sundarasetty – mortgagee assignee receiving Rs.3,000/- being the mortgage amount from Kalingappa and by putting him in possession, as rightly observed by the High Court, the mortgage is extinguished and, therefore, the suit for redemption of the mortgage preferred by the Appellants herein – original plaintiffs was not maintainable. No error has been committed by the High Court in dismissing the suit for redemption of the mortgage preferred by the Appellants herein-original plaintiffs. We are in complete agreement with the view taken by the High Court.