K. PARAMESWARAN PILLAI(DEAD) versus K. SUMATHI@ JESIS JESSIE JACQUILINE & ANR.

Citation: [1993] SUPP. 2 S.C.R. 173 · Decided: 07-09-1993 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed

Judgment (excerpt)

K. PARAMESWARAN PILLAI(DEAD) 
A 
v. 
K. SUMATHI@ JESIS JESSIE JACQUILINE & ANR. 
SEPTEMBER 7, 1993 
[KULDIP SINGH AND K. RAMASWAMY, JJ.) 
B 
Civil Procedure Code 1908-0rder XXXW, Rules 7 and 8, 2(2), 4(2), 
3, 5( 1 }-Redemption of Usufructuary Mortgage-Final decree for redemption 
not passed-Held, Mortgagor may redeem mortgage at any time before final 
decree is passed or sale made in furtherance thereof is confirmed-Mortgagor C 
may seek redemption even by way of separate suit-Rules 2(2), 4(2), 3, 5(1). 
Limitation Ac~ 196rArtic/e 137 of Schedule 1-Laches-Held, Court 
has power and jurisdiction to entertain applicatioll.for final decree till passing 
of the final decree and its execution or till remedy is ba"ed by limitation. 
D 
A usufructuary mortgage was created by one 'K' in favour of 
appellant's is predecessor in interest in respect of a house. In 1966, the 
mortgagor created a second mortgage in favour of the appellant with a 
direction to redeem the first mortgage and to remain in possession for 10 
years. In the redemption suit filed by the appellant, a preliminary decree E 
was passed directing him to deposit Rs.13,467.15 in the Court on or before 
May 6, 1970. On appeal, the appellant's liability was increased. On January 
11, 1972 he filed an interlocutory application to pass final decree deposit-
ing only the amount quantified in the preliminary decree. On second 
appeal by the mortgagor, the decree was modified enhancing the liability. 
In the meantime, a suit for title filed by one T. impleading the mortgagor, F 
the appellant and others was decreed by the Trial Court but this was set 
aside by the High Court. In the meanwhile, the appellant got interlocutory 
application filed by him dismissed and withdrew the deposited amount, 
while the respondent initially purchased the equity of redemption of 
mortgage from the mortgagor, and later the hypotheca (the house proper- G 
ty) by a registered sale deed dated February 1, 1979, and thus became the 
mortgagor. 
The appellant filed an interlocutory application on February 5, 1979 
to pass final decree in the redemption suit O.S. 400 of 1966, depositing a 
sum of Rs. 14,957.85. Which the respondent resisted mainly on the grounds H 
173 
174 
SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R. 
A 
of bar of limitation and non-maintainability. She also filed an independent 
suit for redemption of the mortgages or alternatively for foreclosure of the 
appellants' redemption suit. 
B 
c 
The trial court granted final decree which was affirmed on appeal. 
The High Court set aside the final decree as the appellant had withdrawn 
the interlocutory application unconditionally and without leave of the 
Court. It also held that the redemption suit filed by the respondent 
operated as a bar to the maintainability of the application for final decree. 
Hence the appeal by the mortgagee. 
Dismissing the appeal, this Court 
HELD : 1. By a reading of Order XXXIV, Rules 7 and 8, the 
legislative intent is clear that the plaintiff has been empowered to make an 
application either for foreclosure or sale of a hypotheca or redemption of 
D any other mortgage except usufrnctua1y m01tgage. The plaintiff need not 
make any application for extension of time fixed in the preliminary decree. 
The outer limit for an usufructuary mortgagor for making payment of the 
amount due under the preliminary decree is passing of the final decree or 
the date of confirmation of the sale. At any time before passing the final 
decree or confirmation of the sale held in pursuance of the final decree the 
E 
plaintiff usufructuary mortgagor has been given right to make payment of 
the redemption money due under preliminary decree and the subsequent 
liability incurred thereon. [180-C-F] 
Badapuratti v. Valiyaraja, ILR 25 Mad 300 at 307 and Motilal v. 
F 
Thakur Ujagar Singh, A.I.R. (1928) PC 137, referred to. 
2. In the case of preliminary decree for redemption of usufructurary 
mortgage no limitation begins to run until deposit is made though there 
is a conditional preliminary decree and default was committed by the 
mortgagor for compliance thereof. Order XXXIV Rule 8(3)(b) expressly 
G excludes the right to the mortgagee to apply for foreclosure or sale or 
redemption in the case of usufructuary mortgage. Necessary consequence 
is that so long as the right subsists, though there is delay incompliance of 
the condition imposed in the preliminary decree, the right of redemption 
to the mortgagor is not lo

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