Back
Judges : J.B.KOSHY,K.THANKAPPAN
Govindan Nair - Appellant
Versus
Abraham - Respondent
Case No : S.A. No. 361 of 1992, Cross Objection
Decided On : 09/27/2002
Advocates Appeared :
S.V. Balakrishna Iyer; K. Jayakumar; A.M. Pratap Singh; For Appellants K.V. Sohan; Sreeja Sohan K.; P.K. Behanan; Suresh Jose; For Respondents
Limitation Act –Articles 61,137 –Transfer of Property Act –Section 60 –Code of Civil Procedure –Order XXXIV Rule 7 –Issue on Mortgaged Property, Jurisdiction, Res judicata –The learned counsel for the appellants submitted that it is a pure question of law – Hence, there is no res judicata or estoppels –It was held that a question relating to jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of that Court –In other words, if the Court assumes jurisdiction which it does not possess under the Statute, the question cannot operate as res judicata even between the same parties as it will assume status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the legislature –question to be considered is whether right to redeem is extinguished on the expiry of 30 years’ time limit after the date fixed for redeeming the mortgage in view of the Limitation Act –Held, The trial court was right in its view that its jurisdiction on remand was circumscribed and fettered by the terms of the order of remand – Court also note that out of the mortgaged property, tenants of land was given to the fourth respondent and balance was ordered to be redeemed after paying full redemption money and other amount and the parties are bound by the earlier remand order –Judgment has become final and points settled there cannot be re-agitated as trial court cannot go beyond the remand order – In view of the above, Court is of the opinion that there is no merit in the Second Appeal and the Second Appeal is dismissed – In view of the facts of the case, parties shall bear their respective costs –In the Cross Objection, respondents 1 to 4 challenges the granting of ten cents of land as kudikidappu right the Kerala Land Reforms Act to the fourth respondent – The above decision is based on facts and no interference is required in a Second Appeal as no question of law is raised – Cross Objection is also dismissed –Appeal dismissed
1. This Second Appeal was referred to the Division Bench by Justice Chettur Sankaran Nair by Order of Reference dated 20.7.1992 doubting the correctness of the judgment in Kunjamma v. Bhageerathy Amma (1990 (1) KLT 504) in so far as it holds that the amount found due in the preliminary decree should be deposited within 30 years from the date on which the mortgage money has become due as right of redemption of mortgage is permanently lost by that time. According to the above judgment, in view of Art.61 of the Limitation Act, right to redeem mortgage is lost after 30 years from the date on which the mortgage money has become due. After the above limitation period, relationship of mortgagor or mortgagee is not subsisting as Art.61 of the Limitation Act prescribes a period of 30 years to redeem or recover possession of the immovable property and the period of Limitation Act is not extended by filing of a suit or passing of a preliminary decree within that period. The Court observed as follows:
"Art. 61 of the Limitation Act prescribes a period of 30 years to redeem or recover possession of immovable property mortgaged and time begins to run when the right to redeem or recover possession accrues. The period of limitation for foreclosure by a mortgagee is also 30 years and the starting point of limitation is the same. The deposit can be made by the mortgagor so long as the relationship of mortgagor and mortgagee subsists. It cannot be said that the relationship subsists even after the expiry of the period of limitation prescribed under Art.61 of the Limitation Act. The period of limitation is not in any way extended by the passing of the preliminary decree. The right of the mortgagee to get a final decree debarring the plaintiff from all right to redeem the property will also come to an end on the expiry of 30 years from the date on which the mortgage money has become due. The mortgagor cannot, therefore, wait for years and years and then make a deposit and file an application for a final decree. In other words, the deposit of the amount found due in the preliminary decree has to be made before the date fixed in the preliminary decree or within the period of limitation prescribed in Art.61 of the Limitation Act, viz., within 30 years from the date on which the mortgage money has become due."
We also note that a similar reference was made by Justice R. Bhaskaran in S.A.No. 215/90.
2. We may first answer the referred question before going to the other questions of law raised in this appeal. In this case, facts are not disputed. Property was mortgaged on 27.5.1122 (ME) (11.1.1947) for a period of 12 years. The period expired on 11.1.1959. Contention based on the observation of the learned Single Judge in Kunjamma's case (supra) is that since the mortgage money is not deposited before 11.1.1989, the right to redeem mortgage money is extinguished by operation of Art.61(a) of the Limitation Act. (For answers to reference, we are now not referring the contention raised under O. XXXIV R.7 of the Code of Civil Procedure with regard to deposit of money after passing of preliminary decree.). Admittedly, mortgage amount of Rs. 600/- was deposited only on 19.1.1990, after expiry of 30 years. Hence, the contention is that notwithstanding the filing of suit within 30 years of the time fixed for redemption of mortgage or passing of a preliminary decree, in view of non-payment of mortgage money within 30 years from the date from which the mortgage money has become due, right to redeem mortgage is extinguished.
3. Art.61 (a) of the Limitation Act comes under Part V of the Limitation Act which prescribes law of limitation for filing suits relating to immovable property. It reads as follows:
"Part V
Suits Relating to Immovable Property
4. A simple reading of Art.61(a) would reveal that limitation is fixed under this Article for filing suits for redemption of mortgage. Heading of Part V refers to 'suits' and what is mentioned in first column is 'de
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
