Oppilamani Udayar vs Sivasamy
2023 Latest Caselaw 7671 Mad

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                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                Dated :         05.07.2023

                                                      CORAM

                              THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN

                                               C.R.P.No.3423 of 2010
                                                       and
                                                 M.P.No.1 of 2010



                     Oppilamani Udayar                             ...Petitioner

                                                          Vs.


                     1.Sivasamy
                     2.Dharmalingam(died)
                     3.Ravi
                     4.Vasanthi
                     5.Nagaraj
                     6.Elavarasan
                     7.Jayanthi                     ...Respondents


                     (R4 to 7 brought on record as LRs of the deceased R2 viz Dharmalingam

                     vide court order dated 23/3/2021(GKIJ).)

                     PRAYER: Civil Revision Petition filed under Section 115 of the Code of
                     Civil Procedure to under Article 227 of the Constitution of India as against




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                     the judgment and decree dated 30.12.2009 made in C.M.A.No.7 of 2008 on
                     the file of the Subordinate Judge, Ariyalur in confirming the fair and final
                     order dated 24.06.2008 made in E.A.No.2 of 2008 in E.P.No.82 of 2006 in
                     O.S.No.150 of 2004 on the file of the District Munsif Court, Ariyalur are
                     illegal, unsound and liable to be dismissed.


                                  For Petitioner    :     Mr.G.Ethirajulu
                                  For Respondents   :
                                  For R1            :     Mr.C.Prabakaran
                                  For R2            :     Died
                                  For R3            :     Mr.M.Sivakumar
                                  For R4            :     -No Appearance-
                                  For R5 to R6      :     Not Ready In Notice.
                                  For R7            :     -No Appearance-

                                                               ORDER

This is a revision preferred by a Mortgagor. The Mortgagor suffered a

decree in O.S.No.150/2004 on the file of the District Munsiff, Ariyalur.

2. A preliminary decree for foreclosure was passed and a final decree

was also passed for permitting sale of property. In pursuance thereof

execution petition was filed in E.P.No.82 of 2006. The amount claimed in

the Execution Petition was Rs.1,05,642/-, this represents the following

heads:-

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(i) Amount as per decree is Rs.69,133.15/-.

(ii) Interest on Rs.69,133.15/- amounting to Rs.24,893/-

(iii) Cost of Rs.11,616/-.

3. For the subsequent interest of Rs.40,000/-, which was the mortgage

amount, the petitioner has filed a memo stating that as of 14th August 2021,

the total liability is Rs.1,78,397/-.

4.The position of law is clear, once it is a mortgage it is always a

mortgage. A mortgagor has the right to pay the amount, claimed under the

decree, as long as the decree for foreclosure is in jeopardy or the execution

proceedings are kept pending. The petitioner has challenged the execution

proceedings before this Court and therefore, the decree is still in jeopardy.

5. In order to give an opportunity to pay the entire dues under the

decree, time is granted for four (4) weeks i.e., till 16.08.2023 to pay the

entire amount claimed under the decree. In case the amount is not paid on or

before 16.08.2023, further orders will be passed in the revision petition.

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6.The Mortgagor is called upon to pay the entire amount as per the

calculation. It means the entire amount claimed under the E.P.No.82 of

2006 together with the interest at 12 per cent per annum from the date of the

decree that is 07.07.2006 till 16.08.2023. As stated above, this amount shall

be paid on or before 16.08.2023.

7.With the above direction this Civil Revision Petition stands

allowed. Connected Miscellaneous Petition is closed. No Costs.

Post on 17.08.2023 for reporting compliance.

                                                                                         05.07.2023


                     Index             : Yes/No
                     Neutral Citation Case : Yes/No
                     nst




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                     To:

The Principal District Munsif Court, Ariyalur.

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V. LAKSHMINARAYANAN, J, nst

C.R.P.No.3423 of 2010 and M.P.No.1 of 2010

05.07.2023

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https://www.mhc.tn.gov.in/judis