An assignee of a mortgage can only claim title following a foreclosure decree; the right of redemption remains unless barred by limitation or separated by a suit for foreclosure.

JUDGMENT

These two Appeals raises a common question and hence are being considered and disposed of together. The brief facts necessary for the disposal of the Appeals are as follows:

2. O.S.No.698/2005 is a suit preferred by the 1^st respondent herein in both these appeals (hereinafter called as “the mortgagee”) seeking for declaration of title and possession and a consequential injunction restraining the defendant/appellant herein from trespassing into the plaint schedule property.

3. The 1^st respondent/plaintiff claimed title over the property by virtue of an assignment of mortgage executed by the 1^st defendant therein on 04.02.1967 as Document No.408/67. It is contended that the plaint schedule property was originally mortgaged by the 1^st defendant to one Retnamma and therein by Document No.2349/67, the plaintiff has purchased the mortgage rights from the above mentioned mortgagee. While so, there was an attempt made by the defendants in O.S.No.698/2005 to trespass into the plaint schedule property and also take possession of the same and hence the suit. The defendants resisted the suit by filing separate written statement. The 3^rd defendant in the suit contended that on 16.07.1981, he agreed to sell an extent of 10 cents of property for Rs.24,000/- and received Rs.14,000/- as advance. Later, on seeing that the 3^rd defendant was not ready to purchase the property, the agreement was cancelled and thereafter, an agreement was forged in favour of the 2^nd defendant and O.S.No.379/1982 was preferred in which a decree for specific performance was granted. Though the 1^st defendant in O.S.No.698/2005 admitted in the written statement filed in O.S.No.379/1982 that the property was under mortgage, he denied the averments of the plaintiff that possession of the property was granted over to him. The 2^nd defendant contested the suit by filing a separate written statement and contended that the agreement styled as a Mortgage Deed in the year 1967 only a security document. Therefore, the plaintiff did not obtain possession over the plaint schedule property. The 1^st defendant had obtained the assignment of 40 cents in favour of his brother and the plaintiff had no possession of the property. Since the original mortgage is only a security document, the right of redemption is not barred by limitation recording the suit is not maintainable. Further contended that the decree in O.S.No.379/1982 was confirmed by this Court in A.S.No.662/1992 and thereafter, the same was put to execution and on 06.10.2005, a document of sale was executed in his favour. On behalf of the plaintiff, Exts.A1 to A6 documents were produced on behalf of defendants Exts.B1 to B15 documents were marked. PW1 to PW4 was examined on behalf of the plaintiff. DW1 was examined on behalf of the defendants. Exts. C1 and C1(a) are the commission report and the survey plan submitted by the Advocate Commissioner. The learned Trial Court on the basis of oral and documentary evidence found that the right of redemption of mortgage has become time barred going by Article 61 of the Limitation Act, 1963 and decreed the suit granting the consequential injunction as prayed for. In the meantime, as against the execution of the judgment and decree in O.S.No.379/1982, the plaintiff in O.S.698/2005 preferred I.A.No.2543/2006 in O.S.No.379/1982 before the 1^st Additional Sub Court, Thiruvananthapurm under Order 21 Rule 97 of the Code of Civil Procedure (CPC), 1908, seeking to raise an obstruction against the delivery of the property. By order dated 27.08.2009, the said application was dismissed on the ground that the challenge to the judgment and decree in O.S.No.698/2005 has not become final.