The main legal point established in the judgment is the interpretation of the applicability of Article 137 of the Schedule to the Limitation Act, 1963 in the context of a usufructuary mortgage, as well as the determination of the special right of a usufructuary mortgagor under Section 62 of the TP Act.

JUDGMENT

Anil Kshetarpal, J. - While assailing the concurrent findings of fact, arrived at by both the Courts below, while allowing an application for preparation of the final decree, the appellants have filed the present regular second appeal.

2. Some facts are required to be noticed. A preliminary decree for redemption of the property, with respect to usufructuary mortgage, was passed in favour of the respondents on 24.12.1968. It was directed that Lal Singh shall pay by 22.03.1969 a sum of Rs. 1,185.50 to Kaka Singh with respect to the land measuring 10 kanals and 17 marlas, whereas Hari Singh shall pay an amount of Rs. 1,765.50 to Bhajan Singh. The amount was deposited on 19.03.1969. Two first appeals, filed by Lal Singh and Kaka Singh, were dismissed on 11.01.1974. Two regular second appeals, filed in the High Court, were also dismissed on 02.03.1983. The suit filed by the mortgagees for foreclosure was also dismissed on 02.06.2012 which was upheld on 06.07.2013 in the first appeal. An application for passing of final decree was filed by the legal representatives of the original mortgagors on 05.03.2013, which has been allowed on 28.02.2018. The first appeal, filed against the order directing passing of the final decree, has also been dismissed on 10.07.2019.

3. Heard the learned counsel representing the parties, at length and with their able assistance, perused the paper-book and the record of the Courts below, which was requisitioned.

4. The learned counsel representing the appellants, while relying upon the judgment passed by the Supreme Court in K. Parameswaran Pillai (Dead) v. K.Sumathi alias Jesis Jessie Jacquiline and Another (1993) 4 SCC 431, contends that Article 137 of the Schedule to the Limitation Act, 1963 (hereinafter referred to as 'the 1963 Act'), applies to this matter and since the amount was deposited on 19.03.1969, the limitation for filing an application would begin to run and after the expiry of three years, the mortgagor has no right to apply for a final decree. He also relies upon the judgment in Baldev Singh v. Kishan 1991 PLJ 692, Ram Lal v. Girdhari 2010 (4) CCC 204 and AIR 2007 Kerala 44.

5. Per contra, the learned counsel representing the respondents, while relying upon Achaldas Durgaji Oswal (Dead) Through LRS v. Ramvilas Gangabisan Heda (Dead) Through LRS. and Others AIR 2003 SC 1017, contends that the mortgagee in a usufructuary mortgage has no right to file an application either for foreclosure or for sale. Therefore, the application is not barred by the period of limitation. He submits that these aspects have been clarified by the Supreme Court in Achaldas Durgaji Oswal's case (supra).

6. Keeping in view the aforesaid facts, the only issue which arises for consideration is as to whether the application filed by the mortgagor of a usufructuary mortgage is within the prescribed period or not. This Court has carefully read the judgments relied upon. In K.Parameswaran Pillai's case (supra), undoubtedly the Court observed that no limitation begins to run until the deposit is made. However, the aforesaid position has been clarified in an elaborate manner by the Supreme Court in the subsequent judgment in Achaldas Durgaji Oswal's case (supra). In para 21 and 25 of the aforesaid judgment, the Supreme Court held that Order XXXIV Rule 7 and 8 CPC do not confer any right to the usufructuary mortgagee to apply for a final decree which is conferred on the mortgagee of other kinds of mortgages. The Court further went on to observe that in fact, Order XXXIV Rule 8(3) (b) CPC expressly excludes the right of the usufructuary mortgagee to apply for foreclosure or sale or redemption. While examining the observation made in K.Parameswaran Pillai's case (supra), the Supreme Court, in para 43, has observed that the passing observations made in the said case, without any argument and without any precedent, cannot be treated as declaration of law in terms of Article 141 of the Constitution of India. In para 36, the Su