Order of Executing Court need not be revised by High Court.

A. Abdul Hadi, J.

1. This revision by the mortgagee is filed against the dismissal of E.A.No. 105 of 1989 filed under Section 47 of Code of Civil Procedure and in E.P.No. 130 of 1988 in O.P.No. 1 of 1986. The said O.P.No. 1 of 1986 was filed by the respondent usufructuory mortgagor herein, under Section 83 of the Transfer of Property Act, hereinafter called 'the Act'.

2. Admittedly in O.P.No. 1 of 1986 the respondent-mortgagor of the property in question, deposited the mortgage amount on 24-1-1986 as contemplated under Section 83 of the Act and notice was ordered to the mortgagee-petitioner herein as per the said section and though he entered appearance and was given time for filing counter on 11-11-1986 and on 3-12-1986 he did not file any counter. So, the respondent herein, who was the petitioner in the said O.P. was examined and there was no cross-examination by the petitioner herein, nor the petitioner herein let in any oral or documentary evidence. Never was it also pleaded that the mortgage amount deposited was not the correct amount due or that the petitioner was, unwilling to accept the mortgage amount. Then, on 12-1-1987 the order was passed in O.P.No. 1 of 1986 directing the petitioner herein to deliver the property to the respondent herein. Subsequent to the said order, the petitioner herein filed I.A.No. 872 of 1987 to set aside the said order in the O.P. on the ground that the said order in the O.P. was an ex parte order. The said I.A. also was dismissed holding that the said order in the O.P. as per Order 17, Rule 3, C.P.C., that there was also a delay of 15 days in filing the said application. That dismissal order was passed on 26-11-1987 and there is no appeal or revision against the said dismissal order or the earlier order in the O.P. Subsequently, when the respondent herein who secured the above order in O.P.No. 1 of 1986 filed E.P.No. 130 of 1988 to execute the said order. In the said E.P., the petitioner herein filed a counter. Therein, though it was admitted that the mortgage was discharged, it was pleaded that there was a tenancy which existed prior to the mortgage and subsisted still. But this plea of tenancy prior to the usufructuary mortgage cannot be of any avail since this Court has held that if there is a possessory mortgage in favour of the lessee, the lessee's interest gets merged in the mortgage rights at its acquisition and consequently there is an implied surrender of the leasehold, then itself (Vide Meenakshi Anvna v. Kizhakke Valath Narayani . Whatever it is, after hearing both the parties, the Executing Court by order dated 10-1-1989 ordered delivery of possession. Immediately thereafter, before delivery could be effected, the present E.A.No. 105 of 1989 was filed in February, 1989 and the court below has dismissed the said E.A. by order dated 7-9-1989 and against the said order, the petitioner, has filed this revision.

3. For the first time in this revision, a new reason is alleged for inviting the Court to hold that the order in O.P.No. 1 of 1986 was a nullity. The reason is that on receipt of notice of the O.P. filed under Section 83 of the Act, the petitioner herein did not file a petition stating his willingness to accept the deposit made by the respondent herein and that hence the court has no jurisdiction to pass the order it has passed and that it should have only directed the respondent herein to file a suit for redemption. It is to be noted that nowhere earlier, either in the counter to the above said E.P. or even in the affidavit filed in support of E.A.No. 105 of 1989, such a contention had been raised. Further, in O.P.No. of 1986 also no counter was filed by the petitioner herein. However since the learned Counsel for the petitioner contended that the order that was passed in O.P.No. 1 of 1986 was a nullity, it being beyond the scope of Section 83 of the Act, I allowed the learned Counsel for the petitioner to make the said submission on the ground of nullity, though it is no