IMPORTANT POINT
In usufructuary mortgages, the limitation for final decree applications starts only upon the deposit of the mortgage amount, not from the preliminary decree.

JUDGMENT :

S. SOUNTHAR, J.

Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 04.06.2002 made by the learned Subordinate Judge, Kuzhithurai in A.S. No. 49 of 1996 on his file confirming the final order and decreetal order, dated 12.08.1995 made by the learned Additional District Munsif of Kuzhithurai in I.A. No. 1230 of 1992 in O.S. No. 1460 of 1969.

1. The plaintiffs in a suit for redemption of usufructuary mortgage are the appellants. The plaintiffs obtained a preliminary decree for redemption of usufructuary mortgage and the same was confirmed by this Court in a Second Appeal. Thereafter, the appellants/plaintiffs filed I.A. No. 1230 of 1992 for passing of final decree. The said petition was dismissed by the trial Court on the ground that it was barred by limitation. Aggrieved by the same, the appellant preferred first appeal in A.S. No. 49 of 1996. The first appellate Court also affirmed the findings of the trial Court. Aggrieved by the same, the appellants are before this Court.

2. At the time of admission, this Court formulated the following substantial questions of law by order, dated 07.03.2003:

“(a) When will the cause of action for filing the final decree application in a suit for redemption would accrue taking into account the pendency of the second appeal before this Court, namely, S.A. No. 856 of 1981 till 21.07.1989?

(b) If the cause of action arises on the disposal of the second appeal, would the time granted by the Lower Appellate Court while granting the preliminary decree for redemption have any relevance and whether it is capable of being extended on the final decree application being filed?”

3. Elaborating the substantial questions of law formulated at the time of admission, the learned Counsel for the appellants submitted that the Second Appeal preferred as against the preliminary decree was disposed of by this Court on 21.07.1989. Thereafter, the appellants deposited the mortgage debt, as directed in the preliminary decree on 23.03.1992 and filed the present application for passing of final decree. The learned Counsel further submitted that in case of usufructuary mortgage, the limitation for filing final decree application will start ticking only on deposit of the mortgage debt. In the case on hand, the amount was deposited on 23.03.1992 and the final decree application was filed on 31.03.1992 well within the limitation period. The learned Counsel further submitted that the Courts below by taking into consideration the date of preliminary decree, as the starting for limitation, committed a serious error in dismissing the final decree application. In support of his contentions, the learned Counsel for the appellants relied on the following judgments:

(1) The judgment of the Hon'ble Apex Court in K. Parameswaran Pillai (Dead) vs. K. Sumathi @ Jesis Jessie Jacquiline and Another, AIR 1994 SC 191

(2) Unreported judgment of this Court in Mercy Rajam vs. Vareethal (Died) and Others in S.A. No. 1318 of 2003, dated 28.10.2018

4. The learned Counsel for the 19th respondent submitted that the preliminary decree was passed in favour of the appellants on 23.04.1981 with a direction to the appellants to pay a sum of Rs.45,000.63/-. However, the appellants failed to deposit the said amount within reasonable time and the said amount was deposited only on 23.03.1992. The learned Counsel further submitted that the mortgage was of the year 1921 and 30 years time for redemption got expired long back on 11.09.1951. In such circumstances, the limitation for redeeming the property got expired and the deposit made by the appellants after 41 years is not acceptable.

5. It is not in dispute that challenging the preliminary decree passed by the Courts below, a Second Appeal was filed in S.A. No. 856 of 1981 and the same was dismissed on 21.07.1989. The deposit was made by the appellants on 23.03.1992 well within the period of three years. As far as the limitation for f