Judgment :

Fakkir Mohamed Ibrahim Kalifulla, J.

1. The defendants are the appellants. The challenge is to the judgment of the High Court of Kerala at Ernakulam dated 10.12.2002 passed in R.P.746/2002 in C.M.A.91/2002. The respondents No.1 to 7 are the legal heirs of one Varadaraja Naicker. The said Varadaraja Naicker created a usufructury mortgage relating to plaint scheduled properties in favour of predecessor-in-interest of the appellants initially for a sum of Rs.10,000/- on 17.11.1958. The suit properties were mortgaged for a further sum of Rs.6000/-with the same mortgagee on 29.10.1959. Again on 08.02.1961 an additional mortgage was executed in respect of the suit scheduled properties for a further sum of Rs.5000/-. While the mortgage was subsisting, for the recovery of arrears of income tax payable by the mortgagor Mr. Varadaraja Naicker, the suit scheduled properties were attached under the Revenue Recovery Act. After following the due process, the property was sold in public auction and the son of mortgagee by name P. Duraisingam made a highest bid in the auction, pursuant to which he made the payment and the sale deed Exhibit B5 dated 04.12.1964 came to be executed in his favour. Thus, P. Duraisingam became the owner of the suit property vide sale deed No.179 dated 04.12.1964. The arrears of agricultural income tax was in a sum of Rs.2722.99. The highest bid amount of P. Duraisingam was Rs.2820/-. After a lapse of more than 30 years, after the mortgage, the successor-in-interest of the mortgagor, namely, respondent Nos.1 to 7 filed the suit in the year 1993 in O.S. No.289/93 on the file of the Sub-Court, Thodupuzha. The suit was for redemption of the mortgage and the suit scheduled properties by directing the defendants to put the plaintiffs in possession on receiving the mortgage amount. The other prayers were for direction to the defendants to surrender the mortgage deeds and execute necessary conveyances or other documents to dispel the cloud on defendants' title to the suit property.

2. The suit was resisted at the instance of the appellants, inter alia, contending that the suit was barred by limitation, hit by Order II Rule 2, Code of Civil Procedure (in short 'CPC') by virtue of an earlier suit filed by the mortgagor, that the mortgagor lost possession of B and C scheduled properties as early as in the year 1964 pursuant to revenue recovery proceedings for appropriation of agricultural income tax liabilities of the mortgagor and hence there was no right in the plaintiffs to seek for redemption. It was further contended that since B and C scheduled properties were sold in public auction towards agricultural income tax arrears of the mortgagor by way of revenue recovery proceedings, the mortgagee suffered a loss of income which the plaintiffs were liable to compensate.

3. The Trial Court framed as many as seven issues for consideration, which included maintainability of the suit, question of limitation and impediment under Order II Rule 2 CPC. The vital issues were issue Nos.4, 5 and 6 which read as under:

"(4) Whether the defendants have effected any improvements in the mortgaged properties, if so what is the quantum?

(5) Whether the plaintiffs have lost their rights or redemption of plaint B and C schedule properties by virtue of the revenue sale?

(6) Whether the defendants are entitled to claim tax and levies allegedly paid by them?"

4. In the suit Exhibits A1 and A1(a), certified copy of the mortgage deed No.86/1961 and its translation, were filed while on behalf of the defendants as many as 52 documents were marked. One V. Sethuram was examined as P.W.1 and one R. Rajasekharan was examined as D.W.1. The Trial Court by relying upon Exhibit B5, the sale certificate, issued in favour of Duraisingam by the Sub-Collector, Devicolum dated 04.12.1964, as well as, Exhibit B6, issued notice to the mortgagee at the instance of the plaintiffs and Exhibit B8, copy of the reply notice issued on behalf of the mortgagee t