O R D E R

The Civil Revision Petition has been filed to set aside the fair and decreetal order, dated 19.07.2012, in I.A.No.239 of 2011 in O.S.No.172 of 1973 passed by the I Additional District Munsif Court, Kuzhithurai.

2. The brief facts of the case are as follows:

One K.Chellaiyan Nadar had entered into usufructury mortgage and handed over possession of his property to the mortgagees/defendants SamuelAsari and his brothers. Since the defendants committed acts of waste the mortgagor/ plaintiff filed O.S. No. 172 of 1973 on the file of the I Additional District Munsif Court, Kuzhithurai for redemption and recovery of possession and the Court had passed a preliminary decree dated 15.07.1976 directing the plaintiff to deposit the mortgage amount of Rs.50/- on or before 15.09.1976. Against the judgment and decree the mortgagees/defendants filed A.S.No.103 of 1997 on the file of the Sub Court, Kuzhithurai and the said appeal was dismissed on 10.08.1977. After dismissal of the appeal, the plaintiff K.Chellaiyan Nadar assigned the decree in favour of the revision petitioners by a registered deed of assignment registered at the office of the Sub Registrar, Kollankode on 08.11.1976. The plaintiff along with the petitioners made the deposit of Rs.50/- on 18.03.2011 vide challan No. 146 and the final decree application was numbered as I.A.No. 328 of 2011 in O.S.No.172 of 1973 on the file of the I Additional District Munsif Court, Kuzhithurai along with the final decree application, I.A.No. 239 of 2011 was filed to condone the delay in depositing the amount. The petition to condone delay was dismissed on 19.07.2012 on the ground that the huge delay was not explained.

3.The learned counsel for the petitioners would submit that the petitioners are the assignees of the decree in O.S.No.172 of 1973 from the original plaintiff K.Chellayyan Nadar. The said K.Chellayan Nadar, had entered into an usufructuary mortgage with the predecessors of the respondent on 19.12.1961 and had handed over the possession of the property to the mortgagees. The plaintiff K.Chellayyan Nadar, had filed a suit for redemption in O.S.No.172 of 1973, on the file of the I Additional District Munsif Court, Kuzhithurai and the suit came to be decreed in his favour on 15.07.1976. Against the judgment and decree in O.S.No.172 of 1973, the predecessors of the respondent/defendant filed appeal in A.S.No.103 of 1977, on the file of the Subordinate Court, Kuzhithurai. The said appeal was dismissed on 10.08.1977. After the dismissal of the appeal, the original plaintiff K.Chellayan Nadar assigned the judgment and decree in favour of the Revision Petitioners, by a registered deed of assignment, registered at the office of the Sub Registrar, Kollankode on 08.11.1976.

4.Thereafter, the original plaintiff along with the petitioners filed a petition in I.A.No.328 of 2011 for passing a final decree. Though no time limit is prescribed by any statute for making deposit pursuant to the preliminary decree for redemption of usufructuary mortgage / final decree application as per Order 34 Rule 8 of the Code of Civil Procedure, the petitioners had due to misconception filed a petition to condone the delay which was not at all necessary.

5.The learned counsel for the petitioners would further submit that as per law no time limit is prescribed for filing a suit for redemption of usufructuary mortgage and no such time is prescribed under any statute for the mortgagor. The period of limitation starts to run only from the date on which deposit is made and not from the expiry of the period prescribed in the preliminary decree. The trial Court had infact fixed the period of two months granting time for the respondent to file appeal and as per law, no time limit is prescribed for deposit of mortgage amount.

6.The learned counsel for the petitioners would further submit that Order 34 Rules 7 and 8 do not confer any right upon the usufructuary mortgagee to apply for a final decree like in other mortgages.