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S. SOUNTHAR
Sukumara Pillai – Appellant
Versus
Padmanabhan – Respondent
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:
The right of the mortgagor to redeem the property does not get extinguished due to non-payment of the mortgage money within the time specified by the Court, and in the case of a preliminary decree fo....
In a usufructuary mortgage, the right to redeem does not extinguish after 30 years; it arises only upon payment of the mortgage money.
In mortgage redemption cases, a final decree can stand even if a preliminary decree is absent, provided the substantive rights and principles of justice are satisfied without prejudice.
Usufructuary mortgagor's right to recover possession restarts upon payment of mortgage money, distinguishing it from other mortgage types, and is not extinguished after 30 years.
The Court clarified that in mortgage redemption, the obligation to deposit money begins only after a formal decree determining the amount due is made, following the correct procedural rules of Order ....
A usufructuary mortgagor can redeem the mortgage at any time; the right is not extinguished by the passage of 30 years, as affirmed by the Supreme Court.
Point of law: Rightly observed by both the Courts below the evidence let in by the appellants to establish this oral sale, gets excluded in view of the prohibition under Section 92 of the Indian Evid....
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