Court has power to entertain application to pass final decree till date of passing of final decree.

Respondents 5 to 9 in LA. No.311 of 1987 in O.S. No.40 of 1976, on the file of District Munsif’s Court at Padmanabhapuram, are the appellants before this Court.

2. Plaintiff, who is the first respondent herein, filed the suit O.S. No.40 of 1976, for redemption. The mortgage is dated 211. 1951. The nomenclature of the document is ‘Otti’ of the erstwhile Travancore area. Preliminary decree was passed on 17. 1977, and two months’ time was provided for deposit of the mortgage amount. As per the said preliminary decree, an amount of Rs.2,290.73 was to be deposited. The mortgagees were not satisfied with the quantum of mortgage money payable to them and, therefore, filed A.S. No.316 of 1977. There was no stay of proceedings. But, on 22. 1983, the appellate court modified the preliminary decree passed, and an additional amount of Rs.900 was directed to be deposited. To that extent, preliminary decree passed by the trial court was modified. Within three years, on 30.9.1985 the entire amount payable to the mortgages was deposited, and, LA. No.311 of 1987 was. filed on 2. 1987 to pass a final decree, and final decree was passed on 22. 1988. The mortgagee contended that the application was barred by limitation, which was not accepted by the trial court. The mortgagee filed an appeal as A.S. No.2 of 1989 against the final decree, without success. It is against the concurrent judgment, appellants have preferred this second appeal.

3. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:

“(1) Whether courts below erred in-law in applying O.34, Rule 5, C.P.C. and stating that application for final decree can be filed even in a suit for redemption of a usufructuary mortgage, before the confirmation of the sale:

.(2) Whether courts below erred in law in failing to take note of the fact that the suit is not one by the mortgages for sale of the hypotheca but it is one for redemption; and

.(3) Whether the courts below erred in law in failing to hold that the application to pass a final decree which had been admittedly filed beyond three years from the date of the preliminary decree is barred by limitation;”

4. Even in the questions of law, the mortgage in question is termed as usufructuary mortgage, it is not disputed by learned counsel for the appellants that the nomenclature of the deed is ‘Otti’ of the erstwhile Travancore area. ‘Otti’ in that area is an anomalous mortgage where the mortgagor is also personally liable for the amount. Question of law has been raised as if the mortgage that is sought to be redeemed is a usufructuary mortgage. In this connection, it may also be noted that there was a Purakkadamom 2. 1958 which also strengthens the inference that it is only an anomalous mortgage.

5. Learned counsel for the appellants contended that the preliminary decree was passed in 1977 and I.A. was filed only on 2. 1987 and, therefore, the application should not have been entertained, and the same is barred by limitation. Learned counsel further submitted that even though the preliminary decree was modified in appeal as per judgment dated 22. 1983, the application was filed beyond three years. For that reason also, learned counsel contended that a final decree should not have been passed.

6. In a recent decision of the Supreme Court reported in K.Parameswaran Pillai v. K.Sumathi, A.I.R. 1994 S.C. 191, which arose from a case of this Court, it was held that Art.137 of the Limitation Act will apply. In that case, their Lordships held that ‘till the date of passing of final decree and execution or till the remedy is barred by time mentioned under Art. 137 of the Schedule to Limitation Act, the court has power and jurisdiction to entertain an application to pass a final decree. At any time before the remedy is barred, it is open to the plaintiff to deposit the redemption money under the preliminary decree’. Admittedly, in this case, the amount was deposited within