K.Vilasini & Ors vs Edwin Periera & Ors

Defendant - judgment debtor is the appellant before us. The properties in suit belonged to one Francis Periera (Periera), the predecessor-in-interest of the respondent. A deed of usufructuary mortgage was executed by him in favour of one Kumaran Kesevan, the predecessor- in-interest of the appellants. Periera is said to have executed a will in terms whereof the equity of redemption in respect of the said mortgage ultimately 2 devolved on some of his children. A suit was filed for redemption of the said mortgage by his successors. A preliminary decree was passed therein. Final decree was passed on 11.7.1997 directing the respondents herein to deposit a sum of Rs.41,33,508.70 within a period of six months purported to be as a part of the redemption being the value of the substantial improvements effected by the mortgagees in the said properties. Indisputably, the said amount was not deposited. An application for extension of time being I.A. No. 247 of 1998 was filed by the respondents on 6.1.1998, which was allowed in terms whereof the time for deposit of the amount was extended upto 11.7.1998. However, on 10.7.1998, another application for extension for a period of six months was filed. It was marked as I.A. No. 5800 of 1998, but the same was dismissed. The earlier Application being I.A. No.247 of 1998 also came to be dismissed ultimately by an order dated 13.7.1998 for default. An application for restoration thereof was filed on 1.9.1999. By an order dated 8.2.2001, the said application for restoration was allowed and the time to deposit the amount was extended till 16.2.2001.

3. The II Additional Munsiff by his order dated 31.3.2005 allowed the said I.A upon condoning the delay on payment of cost of Rs.1000/- directing:

Indisputably, the said order was not complied with. Respondent No. 1 filed another application being I.A. No. 4106 of 2005 for further extension of time, which was rejected on 8.4.2005.

Aggrieved thereby and dissatisfied therewith, a Writ Petition which was marked as Writ Petition (C) No. 12156 of 2005 was filed. By reason of a judgment and order dated 20.5.2005, the said Writ Petition was allowed without any notice to the respondents therein, directing:

3. Taking into account the various facts brought to my notice and also the quantum of the value of improvements to be deposited by the Petitioner, I extend the time granted by the trial Court under Ext. P2 by one month. Petitioner shall deposit the amount stated in Ext. P2 order accordingly.

Although the said order was ex parte in nature, appellants should have questioned the correctness thereof. Instead, he filed an interlocutory application. The same was also dismissed. The order passed in the said interlocutory application for recalling of the order dated 20.5.2005, as noticed hereinbefore, is also not the subject matter of this appeal. The challenge in this appeal is confined only to the order dated 6.3.2006 passed in Writ Petition (C) No. 33208 of 2005.

This Writ Petition is disposed of as above."

Before proceeding further, we may notice that although in the body of the memorandum of appeal the order dated 6.3.2006 passed in both Writ Petition (C) No. 33208 of 2005 and I.A. No. 3350 of 2006 in Writ Petition (C) No. 12156 of 2005 had been mentioned, but the main prayer reads as under:

The deposit of the amount by the appellant had been made in terms of the order passed in I.A. No. 2253 of 2005, which is not under challenge.

Even if we had not taken note of the aforementioned technicality, the subsequent events, in our opinion, categorically show that the appellants herein in view of their conduct are estopped and precluded from questioning the correctness of the order dated 6.3.2006 passed in Writ Petition (C) No. 33208 of 2005. We would, however, advert to the said question a little later.

14. In any event, as indicated hereinbefore the order dated 31.3.2005 passed by the Additional Munsiff in I.A. No. 2253 of 2005 was not the subject matter of challenge. By the impugned judgment, a writ petition as also the I.A. has been disposed of. It was thus obligatory on the part of the appellants to challenge the order passed in both the proceedings. As the amount of Rs. 41,33,508.70 had been deposited, appellants must be held to have accepted the correctness of the said order dated 20.5.2005 disposing of the Writ Petition (C) No. 12156 of 2005.

15. For the reasons aforementioned, we find no merit in this appeal which is dismissed accordingly. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.

August 29, 2008