IMPORTANT POINTS
(1) Right of usufructuary mortgagor to redeem property does not get extinguished due to non-payment of mortgage money within time fixed by Court.
(2) Mortgagee of an usufructuary mortgage would not be entitled to file application for final decree either for sale of property or to debar plaintiffs from right to redeem property.

ORDER

The defendants in a suit for redemption are the revision petitioners.

Factual Matrix

2. The ancestors of the respondents herein had filed O.S.No.419 of 1965 on the file of the Principal District Munsif Court, Kuzhithurai for the relief of redemption of mortgage and recovery of possession on payment of Rs.96.97. The said suit was decreed on 08.12.1982 and a preliminary decree was passed directing the plaintiffs therein to deposit the said sum of Rs.96.97 on or before 08.11.1982 or on any other date which is extended by the Court. The said decree was challenged by the defendants in A.S.No.68 of 1983 before the Sub Court, Kuzhithurai and the same was dismissed on 31.01.1984.

3. The defendants had filed S.A.No.1333 of 1984 before the High Court and the same was also dismissed on 02.02.2003.

4. The plaintiffs/decree holders in the redemption suit had filed I.A.No.153 of 2006 seeking to condone the delay in depositing the mortgage money. In the said application, the legal heirs of the plaintiff have contended that they were under the impression that the mortgage money was already deposited by way of lodgment schedule on 26.07.1966. However, the same could not be traced. At the time of final decree application, the decree holders were under the bonafide belief that the mortgage money has already been deposited. But in the counter, the defendants/judgement debtors have pointed out that the mortgage money has not been deposited. Only thereafter, the petitioners attempted to trace the correct date of deposit of the mortgage money on the basis of the lodgment schedule and they came to know that the mortgage money has not been deposited. Therefore, according to the decree holders, the delay is neither willful nor wanton and the same may be condoned.

5. The defendants/judgement debtors had filed a counter contending that the plaintiffs have misrepresented that they have already deposited the mortgage money and filed a final decree and managed to get it numbered also. Without verifying the same, the final decree application has also been numbered. They have further contended that the final decree application is barred by lapse of time.

6. The trial Court after considering the submissions on either side and after relying upon the judgements of the Hon’ble Supreme Court, arrived at a finding that the mortgage being a usufructuary mortgage, the right of redemption does not get extinguished due to default in deposit of the mortgage money within the time specified by the Court and proceeded to condone the delay in depositing the mortgage money. This order is under challenge in the revision petition.

7. Contentions of the learned counsel appearing for the revision petitioners are as follows:—

(i) A perusal of the mortgage deed dated 13.03.1894 would clearly disclose that it is not an usufructuary mortgage, but it is Othi/Kuzhikanam and therefore, it is an anamalous mortgage. Hence, the findings of the trial Court that the the mortgage being usufructuary mortgage, there is no limitation for depositing the amount, is not legally sustainable.

(ii) Being an anamalous mortgage the plaintiffs/decree holders ought to have filed an application for passing of final decree within a period of 3 years from the date of payment of amount as fixed by the Court. Since the amount has not been deposited, the decree holders would not be entitled to file a final decree application, in view of the fact that it is barred under Section 137 of the Limitation Act.

(iii) The plaintiffs/decree holders have not approached the Court with clean hands. Though they have contended that the mortgage money has already been deposited on 26.07.1966, no proof has been placed before the Court for the same, but have prayed for condoning the delay in depositing the mortgage money before the Court. When the decree holder has not approached the Court with clean hands, the trial Court ought not to have condoned the delay.

(iv) The condone delay application does not specify the