Madras High Court
Selvamony Nadar(Died) ... 7Th ... vs Thaveethu Nadar on 16 June, 2021
S.A.No.57 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.57 of 2003
1.Selvamony Nadar(Died) ... 7th Defendant / 7th Respondent /
Appellant
2.S.Charles
3.S.Alexander ... Appellants
(Appellants 2 and 3 were brought on
record as Lrs of the deceased sole appellant
vide order dated 05.03.2021)
-Vs-
1.Thaveethu Nadar
2.Rajammal
3.Jessijanet
4.Muhammed Mammali
5.Muhammed Meera Pillai Kannu
6.Velayuthan
7.Kochukunjan (died)
8.Mani (died)
9.Royappan Nadar
10.Chellapan Nadar
11.Thankappan Nadar
12.Govindan Nadar
13.Thasayyan Nadar
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S.A.No.57 of 2003
14.Mideenkhan Sahib
15.Selvaraj Nadar
16.Ramaiyan Nadar
17.Ponnu Nadar
18.Govindan Nadar
19.Rajayyan Nadar
20.Chellaiyan Nadar
21.Ahamed Sahib
22.Appavu Nadar
23.Franciskhan
24.Therasammal
25.Devaki
26.Therasammal (died)
27.Chellappan (died)
28.Nesammal
29.Rathinam
30.Selvi
31.Kamalam
32.Sundari
33.Rajendran
34.Rajammal
35.Leela
36.Rathinam
37.Omana
38.Palayyan
39.Valsalam
40.Rethinam
41.Thankapalam
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S.A.No.57 of 2003
42.Thankappan
43.Manonmani
44.Kamalakshi
45.Ramaiyan
46.Nesamony
47.Therasamma
48.Omana
49.Devaki
50.Velappan
51.Vijayan
52.Prabhakaran
53.Sasikala
54.Sumankala
55.Valsala
56.Nalini
57.Ponnamma
58.Leela
59.Sulochana
60.Radha ... Plaintiffs 1 to 3 & Defendants 2 to 6, 8, 9, 12
to 17, 19, 20, 22, 23, 25, 26, 28, 31 to 50, 57 to
71 / Respondents / Respondents
61.D.Babu
62.R.Leela Bai
63.R.Suganthy
64.R.Suma
65.R.Baby
(Respondents 61 to 65 were brought as legal heirs
of the deceased first respondent vide Court
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S.A.No.57 of 2003
order dated 24.02.2016)
66.Shantha
67.Baiju Kumar
68.Babu Kumar
69.Unni Kumar
70.Saji Kumar
71.Sunil Kumar
(Respondents 66 to 71 are brought on record as
legal heirs of the 7th Respondent vide order dated 16.06.2021)
72.Jagathamma
73.Sanal Kumar
74.Rajesh Kumar
75.Satheesh Kumar
76.Sabu Kumar
(Respondents 72 to 76 are brought on record as
legal heirs of the 8th Respondent vide order dated 16.06.2021)
77.Vijayarani
78.Libin
79.Subin Raj
(Respondents 77 to 79 are brought on record as
legal heirs of the 27th Respondent vide order dated 16.06.2021)
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the Subordinate Judge,
Kuzhithurai made in A.S.No.146 of 1997, dated 20.09.2002 pursuant to the
Judgment and Decree in I.A.No.1437 of 1979 in O.S.No.426 of 1968, dated
06.08.1997 on the file of the I Additional District Munsif, Kuzhithurai.
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S.A.No.57 of 2003
For Appellants : Mrs.Chitra Sampath
Senior Counsel for Mr.C.K.M.Appaji
For R2, R3,
R60 to R64 : Mr.N.Dilipkumar
For R38 : Mr.R.Sundar Srinivasan
For R1 : Died
For R26 : Died
For R6, R18,
R47, R48, R50 & R65 : no appearance
R7, R8 & R27 : Died
R4, R5, R9 to R17,
R19 to R25, R32 to R37,
R39 to R46, R49,
R51 to R56 : Remained exparte
R28 to R31 : Tapal returned
JUDGMENT
This second appeal arises out of final decree proceedings in a suit for
redemption of mortgage.
2.The 7th defendant/7th respondent filed this second appeal. One
Thaveethu Nadar and Rajammal filed O.S.No.426 of 1968 on the file of the
Principal District Munsif Court, Kuzhithurai for redeeming the suit
schedule properties. It is not necessary to set out the plaint averments.
Suffice it to say that the case of the plaintiffs was that they had stepped into
the shoes of the original mortgagor. In the suit, as many as 33 persons
including the legal representatives of the original mortgagee had been
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S.A.No.57 of 2003
shown as defendants. The stand of the plaintiffs was that defendants 7 to
33 were claiming under the original mortgagee. The case was strongly
contested and the trial Court passed preliminary decree for redemption in
favour of the plaintiffs on 03.07.1975. The decree holders thereafter filed
I.A.No.1437 of 1979 for passing final decree. The final decree application
was allowed by Judgment and decree dated 06.08.1997. Though there were
as many as 71 respondents in the final decree application, D7-Selvamani
Nadar alone filed A.S.No.146 of 1997 before the Sub Court, Kuzhithurai.
The appeal was dismissed by the first appellate court on 20.09.2002.
Questioning the same, this second appeal came to be filed.
3.The second appeal was admitted on the following substantial
questions of law:-
“(a) In the absence of the prior mortgagee, can the suit for
redemption of the mortgage from the sub-mortgagees under the
prior mortgagee maintainable in law?
(b) Whether the final decree application filed three years
after the passing of the preliminary decree is barred by law of
limitation?”
4.During the pendency of the second appeal, the appellant passed
away and his legal representatives came on record. In the mean while,
some of the respondents had also passed away. Notices were issued. The
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S.A.No.57 of 2003
counsel on record for the appellant on the earlier occasion submitted that
some of the respondents have still not been served and that, therefore, the
appeal may be listed 'for final disposal' after the service of notice is
completed. By now, the number of respondents had swelled to more than
70. I felt that if the appellant could make out a case on merits, then, I would
consider the request for listing the appeal 'for final disposal' after the
service on all the respondents is completed. Experience indicates that
where the number of respondents is high, by the time service on legal
representatives or a deceased respondent is completed, another respondent
dies in the meanwhile and there is a need to bring his legal representative
on record arises. The process can go on ad infinitum. The truth is many of
the judges are liberal and the second appeals get easily admitted. So in
situations such as the present one, it is only proper to call upon the
appellant to argue the case on merits even if the service on all the
respondents is not completed. In any event, the legal heirs of the plaintiffs
are very much before this Court. I felt that the appellants ought to get along
with the matter on merits, since the contesting respondents are present
before this Court. Therefore, the matter was taken up 'for final disposal'.
5.The learned Senior Counsel appearing for the appellants contended
that final decree application was patently barred by limitation. I was taken
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S.A.No.57 of 2003
through the recitals of the suit documents. The mortgage in question is not
usufructuary mortgage but an anomalous mortgage as is evident from the
expression 'Othi'. In 1997-3-L.W.67 (Thankamma and four others Vs.
Santhakumari Amma and others), it was held that a mortgage styled as
'Othi' can only be considered as anomalous mortgage. The suit mortgage,
not being usufructuary mortgage, limitation for filing the final decree
application will be three years from the date fixed for depositing the
redemption amount. Reliance was placed on the Division Bench Judgment
reported in 2011 (3) MWN (Civil) 590 (R.Vijayakumar Vs. The Official
Liquidator, High Court, Madras as the Provisional Liquidator of RBF
Nidhi Limited). The other major contention advanced by the learned Senior
Counsel is that the first defendant who was shown as the first respondent in
the final decree application had passed away during the pendency of the
final decree proceedings. His legal representatives were not brought on
record, though attempts were made. In view of non-bringing on record of
the legal heirs of the first respondent, the final decree proceedings should
be considered as having been abated against D1. In view of the character of
the decree, abatement against the first respondent / first defendant would
result in abatement against all the defendants/respondents in the final
decree proceedings. In this regard, reliance was placed on the decision
reported in AIR [1963] SC 553 (Ram Sarup Vs. Munshi and others). The
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S.A.No.57 of 2003
learned Senior Counsel submitted that this Court should answer both the
substantial questions of law in favour of the appellants and reverse the
impugned Judgment and decree and allow this second appeal.
6.Per contra, the learned counsel appearing for the contesting
respondents submitted that the impugned Judgment and decree does not call
for any interference.
7.I carefully considered the rival contentions and went through the
evidence on record. The contention as regards limitation can be taken up as
first. There is no dispute that the preliminary decree for redemption was
passed on 03.07.1975. The plaintiffs were to deposit Rs.495.45/-. Two
months' time for deposit was also given. It is true that the plaintiff did not
make the deposit. Nor the final decree application was filed within a period
of three years thereafter. But then, it is a matter of record that the plaintiffs
filed I.A.No.1438 of 1979 praying for amending the preliminary decree by
scaling down the mortgage money to zero, that is by deleting the direction
to deposit the mortgage money. This I.A. was allowed on 12.12.1979.
Pursuant to the said order, the preliminary decree was also amended. The
preliminary decree as originally passed read as follows:-
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S.A.No.57 of 2003
“That the plaintiffs do pay into Court on or before
the 3rd day of September 1975 or any later date upto
which time for payment may be extended by the Court,
the said sum of Rs.491.45”.
A reading of the aforesaid clause in the preliminary decree as originally
passed would show that the trial Court, even while directing the
mortgagors/plaintiffs to deposit the mortgage money within a time frame ,
retained the jurisdiction to extend the time for deposit also. If the time for
deposit had been subsequently extended, then, limitation period of three
years would start running only from the extended date. In the case on hand,
the preliminary decree was amended on 12.12.1979. The final decree
application was filed on 21.07.1979 along with the applications seeking
amendment. In view of the allowing of I.A.No.1438 of 1979 on
12.12.1979, the final decree application made in I.A.No.1437 of 1979 was
within the limitation period. Notwithstanding the same, an alternative
argument was also put forth by the learned counsel for the contesting
respondents. He would state that this preliminary decree was put to
challenge by Selvamani Nadar-D7 himself and others in A.S.No.370 of
1976 before the Subordinate Judge, Nagercoil. The first appeal was
dismissed on 17.04.1979. Questioning the same, S.A.No.1383 of 1979 was
filed before the Madras High Court. In the second appeal, an interim stay
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S.A.No.57 of 2003
was originally granted and later, it was modified and finally, the second
appeal itself came to be dismissed on 14.11.1986.
8.The learned counsel relied on the decision reported in AIR 1967 SC
1236 (Sital Parshad Vs. KishoriLal) for the proposition that where an
appeal has been filed against the preliminary decree, the decree holder has
the choice of filing the final decree application immediately and press the
same, if no interim stay is granted in the first appeal. Even if no interim
stay is granted in the first appeal, since the finality of the preliminary decree
is open to doubt, the decree holder can wait till the disposal of the first
appeal and thereafter, file the final decree application.
9.Paragraph Nos.5 and 13 of the said decision reads as under:-
“5.....we may state certain well settled propositions with
respect to preliminary and final decrees in mortgage suits and the
effect of an appellate decree in general on the decree of the trial
Court. Generally speaking, the decree of the appellate Court
supersedes the decree of the trial Court even when it confirms
that decree and, therefore, it is well settled that only the appellate
Court can amend the decree thereafter: [see Muhammad
Sulaiman Khan v. Muhammad Yar Khan] It is equally well
settled that where an appeal has been taken from a preliminary
mortgage decree and is decided, the time for preparation of final
decree is three years from the date of appellate decree even
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S.A.No.57 of 2003
though the appellate Court may not have extended the time for
payment provided in the preliminary decree, where no final
decree has been prepared in between:[See Jowad Hussain V.
Gendan Singh] This applies even to a case where the decree of
the appellate Court is made more than three years after the time
fixed for payment in the preliminary decree: [See Fitzholmes v.
Bank of Upper India]. Further it is well settled that the mere fact
that there is an appeal from a preliminary decree does not oust
the jurisdiction of the trial Court to prepare a final decree even
while the appeal is pending unless there is a stay order: [see Sat
Prakash v. Bahal Rai]. Even if a final decree has been passed an
appeal from a preliminary decree is not incompetent and it is not
necessary for a party to appeal both from the preliminary decree
and the final decree in order to maintain his appeal against the
preliminary decree. In such a case where the preliminary decree
is set aside the final decree is superseded whether the appeal is
brought before or after the passing of the final decree: [see
Talebali v. Abdul Aziz]. Further it was observed in the last case
that where an appellate Court sets aside or varies a preliminary
decree it can, and indeed could, give direction for the setting
aside or varying of the final decree, if the existence of the final
decree is brought to its notices as in all cases it ought to be.
13.It will be seen from this form of the final decree that it is
entirely dependent upon the preliminary decree. Therefore, where
the preliminary decree has been confirmed in toto and the appeal
therefrom has been dismissed, there is no change whatever to be
made in the final decree, for that decree already provides for
subsequent interest after the date of the preliminary decree and
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for subsequent costs, charges and expenses. Therefore, in such
circumstances if the final decree has already been prepared
before the Judgment in appeal from the preliminary decree, there
is nothing more to be done and the final decree as it stands needs
no amendment. It is true that there is a general principle that a
decree passed in appeal even where it confirms the trial court's
decree supersedes that decree. But where we are dealing with a
decree passed in appeal from a preliminary decree and the final
decree has already been passed in the meantime, the decree of the
appellate Court on appeal from the preliminary decree only
supersedes the preliminary decree; it cannot and does not
supersede the final decree which was not taken in appeal.
Therefore, if the decree in appeal from the preliminary decree
confirms it in toto, the final decree already passed needs no
change and must continue to stand. It is true that if no final
decree has been passed before the appeal from the preliminary
decree is decided, the decree-holder gets three years from the
date of the decree in appeal from the preliminary decree to apply
for a final decree. That, however, is a question of limitation and
Courts have held that in such a case three years run from the date
of the decree in appeal from the preliminary decree in order
apparently not to compel the decree-holder to apply for a final
decree if he does not wish to do so and wants to await the result
of the appeal from the preliminary decree. But if the decree-
holder does not wish to await the result of the appeal from the
preliminary decree, he can ask for a final decree in the meantime,
and if the preliminary decree is confirmed in toto the final decree
will need no change and can be executed as it stands. The
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S.A.No.57 of 2003
decree-holder in such a case need not apply for a fresh final
decree and can execute the final decree already passed in the
meantime. In such cases, where a final decree has been passed in
the meantime while an appeal from the preliminary decree is
pending, it is well to remember the observations of Rankin, C.J.
In Talebali's case, ILR [1930] 57 Cal 1013; (AIR 1929 Cal 689
FB) that the existence of the final decree ought to be brought to
the notice of the appellate Court in all cases and that it is the duty
of the appellate Court to give directions with respect to the final
decree if it considers necessary.”
10.Of-course, the learned Senior Counsel appearing for the appellant
would seek to distinguish the said case by contending that the proposition
has not been formulated in the manner projected by the counsel for the
contesting respondents. Since I have already held that the final decree
application filed in this case is within time in view of the amendment order
made on 12.12.1979, it is not necessary to go into the alternative contention
put forth by the learned counsel appearing for the contesting respondents.
I, therefore, answer the second substantial question of law against the
appellants.
11.The next question that arises is whether failure to bring the legal
representatives of the first defendant on record would result in abatement of
the entire proceedings. The learned senior counsel for the appellant placed
reliance on the decision reported in AIR 1963 SC 553 for this proposition.
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In the case on hand, the first defendant was originally a party to the final
decree proceedings. It is relevant to mention here that he did not choose to
challenge the preliminary decree. He only filed an application for valuing
the improvements said to have been made by him. It is beyond dispute that
several attempts were made by the plaintiffs to bring the legal heirs of the
first defendant on record. But then, for reasons which are not clear, the trial
Court chose to dismiss those applications. It is also submitted that the legal
heirs of the first defendant came forward to get themselves impleaded in the
final decree proceedings and those IAs were also dismissed by the trial
Court. Be that as it may, the seventh defendant/Selvamony Nadar himself
filed I.A No.434/1997 for dismissing the final decree proceedings on the
ground that since the legal heirs of the first defendant have not been
brought on record, the proceedings should not be continued. This
application was dismissed on 11.07.1997. It appears that Selvamani Nadar
did not choose to challenge the said order. Be that as it may, the fact
remains that the plaintiffs had clubbed D1 to D6 under one group and the
remaining defendants under second group. Three mortgages were created
on the suit property and the third mortgage was described as superior
mortgage, whatever that means. The original mortgagee had died when the
suit for redemption was filed. D1 to D3 were the legal representatives of
the third mortgagee/superior mortgagee. D4 to D6 were the legal heirs of
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the previous two mortgagees. Thus, D1 to D6 fell under one group. Even if
the legal heirs of the first defendant had not come on record, their interests
were substantially represented by the other two respondents, namely, R2
and R3.
13.Therefore, even if I construe the decree as indivisible and joint,
non-bringing of the legal heirs of D1 will not in any way vitiate the final
decree that was eventually passed. I must also note that the final decree
passed by the trial Court was not challenged by the legal heirs of the first
defendant. It is only the 7th defendant who has filed this second appeal.
14.The learned Senior Counsel would also remark that the 7th
defendant did not claim right in the suit property under the mortgage but
set up title independently and that therefore, the suit for redemption could
not have been maintained against him and only a suit for recovery of
possession could have filed against him, if at all.
15.Though this contention may have some force, it is too late to
advance this argument as the original appellant Selvamony Nadar was a
party to the preliminary decree. The said decree was confirmed in the first
appeal and also by the High Court in second appeal. Thus, the appellants
are confronted with a preliminary decree for redemption that had attained
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finality and therefore, they can no longer refer to the defence originally
taken in the preliminary decree proceedings. Therefore, I have no
hesitation to answer the first substantial question of law also against the
appellants herein. The second appeal is dismissed. No costs.
16.06.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Kuzhithurai.
2.The First Additional District Munsif, Kuzhithurai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.57 of 2003
G.R.SWAMINATHAN, J.
rmi
Judgment made in
S.A.No.57 of 2003
and
C.M.P.(MD)Nos.3677, 3679, 3680, 3681, 3682,
3683, 3684, 3685 & 3686 of 2021
16.06.2021
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