JUDGMENT

Dinesh Mehta, J. - By way of the present Writ Petition, petitioner has challenged the order dated 20.07.2016 in Regular Civil Case No.52/2011 passed by the Senior Civil Judge No.6, Jodhpur Metropolitan, Jodhpur (hereinafter referred s ''the Trial Court'') whereby the application filed by the petitioners-defendants under Order 14, Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred as ''the CPC'') has been partially allowed.

2. The skeleton facts required for deciding the issue involved in the present Writ Petition are that Respondents-Plaintiffs filed a suit for redemption of mortgage/recovery of possession in relation to a property situated at Khandafalsa, Ada Bazar, Jodhpur. It was stated in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs. 6,000/-, by father of the plaintiff and the possession thereof, was handed over to the mortgagee. It was also agreed between the parties that no rent for the property would be paid, while the amount of Rs. 6,000/- would not bear any interest.

3. After death of the mortgagor Rughnath, his son, the plaintiff offered the amount and requested to hand over the possession on 30.09.2002. The defendants refused to hand over the same, showing such denial, to be a cause of action, a suit came to be filed by the plaintiff claiming the mortgage to be usufructuary.

4. In response to the said suit, a written statement was filed by the defendants, wherein the mortgage was feebly stated to be anomalous instead of usufructuary and the suit was stated to be time barred. The factum of the mortgage was not disputed, albit the amount of mortgage was claimed to be Rs. 7,500/- instead of Rs. 6,000/- stated by the plaintiff.

5. During the course of proceedings in the suit, defendants filed an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 contending that the suit was barred by law of limitation, as the same was filed for redemption of mortgage/recovery of possession after 52 years, whereas the limitation for filing the same was 30 years only.

6. The said application came to be rejected by the Trial Court, vide its order dated 22.09.2005, which was challenged by the defendant by way of filing a Revision Petition being S.B. Civil Revision Petition No.514/2005. The said Revision Petition was allowed by this Court vide its order dated 25.07.2013 and the plaint was rejected.

7. During the course of argument of the Revision Petition aforesaid, both the parties including defendants, asserted rather accepted the mortgage to be usufructuary. This Court while allowing the Revision Petition filed by the defendants, has not only relied upon the stand of the parties, but has also recorded a categorical finding that the mortgage in question was usufructuary mortgage, while holding that limitation for filing a suit for redemption of the mortgage/recovery of possession of a usufructuary mortgage is 30 years from the date of execution of the mortgage. It will be apt to reproduce the relevant portion of the judgment of this Court dated 25.07.2013:-

"The learned counsel for the respondent-plaintiff vehemently opposed the submitted made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to section 62 of the Transfer of Property Act, it was submitted that right of usufructury mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to