Judgment

K. RAMASWAMY, J.:- This appeal by special leave arises against the judgment of the Madras High Court in Second Appeal No. 1851 of 1982 dated October 4, 1985. The appellant-plaintiff now becomes puisne mortgagee. The respondent-5th defendant transposes as mortgagor. The facts are many; proceedings are countless and orders are numerous creating bundle of confusions. To clear the cloud and to have clarity, it is necessary, after weeding out the irrelevant, to state the material facts as under:

The hypothica belongs to a house known as T. K. M. One Krishnan, the eldest male member of that house, created on October 29, 1947 an usufructuary mortgage in favour of one Laxminarain Pillai and appellant is one of the successors in interest. Krishnan created a second mortgage on Feb. 12,1966 in favour of the appellant with a direction to redeem the first mortgage and to remain in possession for 10 years. On its footing the appellant laid O. S. No. 400 of 1966 for redemption of the mortgage. The trial court while granting preliminary decree directed to deposit into the court on or before May 6, 1970 a sum of Rs. 13,467.15 Paise. The mortgagor and the mortgagee filed first appeals and the appeal of the mortgagor was allowed increasing the appellants liability and dismissed the appellants appeal. On January 11, 1972 the appellant filed I. A. No. 58 of 1972 to pass final decree depositing only the amount quantified in the preliminary decree. On Second Appeal by the mortgagor, the decree was modified enhancing the liability. In the meanwhile one T. filed a suit impleading Krishnan, the appellant and all others claiming title to the property. Though the trial court decreed the suit, the High Court allowed the appeals of the appellant, Krishnan and others and set aside the trial courts decree on Feb. 17, 1978. In the meanwhile the appellant got dismissed his I. A. No. 58/72 and withdrew the amount deposited, while the respondent purchased initially the equity of redemption of the mortgages from Krishnan and later on purchased the hypothica by a registered sale deed dated Feb. 1, 1979. Thus she became mortgagor. The appellant filed I. A. No. 549 of 1979 on Feb. 5, 1979 to pass final decree in O. S. No. 400 of 1966 depositing a sum of Rs. 14,947.85 which the respondent resisted inter alia on two main grounds, namely, bar of limitation and non-maintainability. The respondent also filed an independent suit for redemption of the mortgages or alternatively for foreclosure of appellants redemption suit. The trial court granted final decree which was affirmed on appeal. The High Court without going into the question of limitation, accepted the respondents contention that appellant is not entitled to file the Second application as he had withdrawn I. A. No. 58/72 unconditionally and without leave of the court and set aside the final decree. It also found that the redemption suit filed by the respondent operates as a bar to the maintainability of the application for final decree.

2. Sri Vishwanatha Iyer, appellants learned senior counsel contended that the approach of the High Court is clearly illegal. Till final decree is passed, the appellant is entitled to deposit the redemption money. No limitation is prescribed to file an application for redemption of usufructuary mortgage. The application is in time from the date of the second appeal. The withdrawal of earlier application is neither a bar for the second application nor of the redemption suit of the respondent. Sri Sampath, the learned counsel for the respondent contended that the trial court fixed the time for depositing the quantified redemption amount; the appellant could file an application for passing the final decree within three years from May 7, 1970. The appellant neither sought time for extension, nor filed it within three years from that date. The appellant, also having withdrawn the first application and the amount unconditionally, without leave of the court, is not entitled to file