K. VILASINI & ORS. versus EDWIN PERIERA & ORS.

Citation: [2008] 12 S.C.R. 1069 · Decided: 29-08-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

[2008] 12 S.C.R. 1069 
K. VILASINI & ORS. 
v. 
EDWIN PERIERA & ORS. 
(Civil Appeal No. 5476 .of 2008) 
AUGUST 29, 2008 
[S.B. SINHA AND AFTAB ALAM, JJ.] 
Code of Civil Procedure, 1908- 0. 34 rr. 5 (as amended 
A 
B 
in State of Kera/a) and 8 (3) -
Mortgage -
Suit seeking 
redemption - Decreed with direction to mortgagor to pay the c 
amount towards value of improvements made on suit property 
- Time of payment extended by trial court from time fo time 
- Denial to grant further time - High Court in writ petition of 
the mortgagor exparte extending the time for depositing the 
amount -
Mortgagee filing writ petition challenging grant of 0 
extention of time by trial court - Also filing interlocutory 
application in the mortgator's writ petition recalling its order 
passed therein - High Court by impugned order dismissing 
the writ petition as well as the application - Decree executed 
and mortgagor put in possession of the suit property - Appeal 
only against the order dismissing the writ petition and not E 
against order of dismissal of interlocutory application - Held:· 
In the facts of the case, mortgage cannot be said to have 
been foreclosed - · Time for depositing the amount towards 
value of improvement was passed u!O.. 34 r. 5 - In view of 
failure to challenge the order of High Court passed in 
F 
mortgagor's writ petition and in view of the subsequent events, 
mortgagees are estopped from challenging extention of time 
- Kera/a Compensation for Tenants Improvements Act, 1959. 
Predecessor-in-interest of the respondents, G 
executed an usufructuary mortgage in favour of the 
.M: 
predecessor-in-interest of the appellants. Mortgagor filed 
a suit for redemption of the mortgage. Decree was passed 
therein directing the mortgagor to deposit a sum towards 
1009 
H 
1070 
SUPREME COURT REPORTS 
(2008] 12 S.C.R. 
A the value of the substantial improvements effected by 
the mortgagees in the suit property, within a period of six 
months. The time to deposit the amount was extended at 
the behest of the mortgagor. After four years of the expiry 
of extended time, respondent No. 1 (son of the mortgagor-
s plaintiff) filed an application praying for cohdonation of 
delay in making the deposit taking the plea that he was 
not aware of the decree. By order dated 31.3.2005, the 
delay was condoned directing him to pay the amount. 
Mortgagor respondent No. 1 did not complywith the order 
C and sought further extention of time which was rejected. 
He filed a writ petition against denial of further extention 
of time. The petition was allowed by High Court granting 
extention of time to deposit the amount. Pursuant thereto, 
mortgagor deposited the amount. 
D 
Appellant-mortgagees filed writ petition challenging 
the order dated 31.3.2005. They also filed an application 
in the writ petition filed by the mortgagor recalling the 
order of the High Court whereby the mortgagor was 
granted extention of time for depositing the amount 
E towards value of improvements. High Court by the 
impugned order dismissed the writ petition as well as the 
application, and directed to revalue the improvements. 
After the final decree was passed, values of improvement 
were redetermined. Respondents deposited the 
F redetermined amount and hence put in possession of 
the suit property. The present appeal is filed challenging 
the order dismissing the writ petition. 
Dismissing the appeal, the Court 
G 
HELD: 1.1 As the time for deposit of payment has 
been extended by the court from time to time in terms of 
Rule 5 of Order XXXIV CPC, as amended by the State of 
Kerala, the appellants cannot be permitted to raise their 
purported claim of right of foreclosure before this Court. 
Indisputably, the court has the power to extend the time .. 
H 
K. VILASINI & ORS. v. EDWIN PERIERA & ORS. 
1071 
·~ 
The jurisdiction has to be exercised judiciously. Once A 
the court exercises its power to postpone the date fixed 
for deposit of the amount due under the mortgage, the 
same could have been subject matter of challenge, but 
the appellants have failed to do so. [Para 10][1080,C-E] 
1.2 An order permitting foreclosure in terms of Order B 
J), 
XXXIV Rule 8(3) can be passed only upon ascertaining 
the nature of the mortgage and the rights of the parties 
thereunder. The two circumstances in which the right of 
redemption is extinguished by passing of a decree are: 
(i) a final decree in a suit for foreclosure under Order c 
XXXIV Rule 3(2), CPC; and (ii
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