## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN**
**WEDNESDAY, THE 23RD DAY OF OCTOBER 2013/1ST KARTHIKA, 1935**
## **CRP.No. 612 of 2013 ()**
**----------------------AGAINST THE ORDER/JUDGMENT IN OS 265/1976 of II ADDL.M.C.,NEYYATTINKARA**
## **REVISION PETITIONER(S):**
**--------------------------------------------**
**UMMINI NADAR KRISHNAN NADAR KOTTUKUZHIVILA ROADARIKU KADAYARA VEEDU, CHOWARA NEYYATINKARA TALUK.**
**BY ADV. SRI.L.MOHANAN**
**RESPONDENT(S)/PETITIONERS-DECREE HOLDERS:**
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## **1. SURESH KUMAR ALIAS BABUKUTTAN**
**S/O.SREEDHARAN, CHAMKOTTU VARUVILAKATHU VEEDU UPANIYOOR DESOM, NEMOM, TRIVANDRUM-695 020.**
## **2. UDAYA RANI**
- **D/O.KRISHNAMMA, DO. DO.**
## **3. USHA**
**D/O.KRISHNAMMA, DO. DO.**
**THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 2310-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **VPV**
## **P.N.RAVINDRAN, J.**
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## **C.R.P.No.612 of 2013**
=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 23[rd] day of October, 2013**
## **ORDER**
The petitioner is the fourth judgment debtor in O.S.No.265 of 1976 on the file of the Court of the Second Additional Munsiff of Neyyattinkara. The respondents are the decree holders therein. In the suit instituted by the respondents for redemption of a mortgage and recovery of possession of the plaint B schedule property, a preliminary decree was passed on 26.9.1985 allowing them to redeem the plaint B schedule property on deposit of the mortgage amount of Rs.57.32. The mortgage amount was deposited and an application for the passing of a final decree was also filed. In the meanwhile, an appeal was taken from the preliminary decree and the appellate court held that the defendants are entitled for the value of improvements. In the final decree application the improvements were quantified and a final decree was passed on 27.9.2002 directing the plaintiffs to deposit the sum of Rs.8117.25 being the value of improvements, within two months from the date of decree. The final decree reads as follows:
“ _4. Therefore a final decree for redemption is passed as follows: 1. The plaintiff shall deposit 8117.25/-_ ₹
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_being the value of improvements within 2 months from the date of decree._
_2. If the plaintiff paid into the court the value of improvements and on receipt of notice of the said deposit, the defendants shall deliver up to the plaintiffs or such person as the plaintiff appoint all documents in his possession or power written relating to the mortgage property, and shall, if so required, returned the property to the plaintiff at their costs from mortgage and from all encumbrances if any created by the defendants or any person claiming under them and shall put the plaintiffs in possession of the property._
_3. The plaintiffs are to get interest of_ ₹ _57.32/- the mortgage amount and 8,117.25/-_ ₹ _the value of improvements at the rate of 6% per annum from the date of deposit till delivery of possession or a period of 3 years, whichever event occurs first. No costs.”_
2. The decree holders did not deposit the value of
improvements within two months from 27.9.2002. They deposited the said sum only on 28.10.2003. They thereafter filed E.P.No.548 of 2003 to execute the final decree passed in the suit. In view of the
fact that the final decree was pending in appeal, the execution petition was closed. Later, after the dismissal of the appeal from the final decree, the decree holders filed E.P.No.366 of 2010 on 22.10.2010. Upon receipt of notice in E.P.No.366 of 2010, the petitioner herein entered appearance and filed objections contending interalia that the value of improvements was not deposited in time and therefore the decree cannot be executed. The decree holders thereupon filed E.A.No.357 of 2011 to condone the
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delay in remitting the value of improvements. The petitioner herein opposed the application contending that section 5 of the Limitation Act, 1963 has no application to proceedings in execution and therefore the delay in depositing the value of improvements cannot be condoned. The execution court overruled the said objection and condoned the delay in remitting the value of improvements. The execution court also held relying on the decision of a learned single Judge of this Court in **Kuttan Narayanan & Ors. v. Benny Sasi & Ors.** [2013 (2) KLJ 139] that the right to redeem a usufractuary mortgage will not stand extinguished for failure to deposit the mortgage money within the time limit stipulated in the preliminary decree and that the only stipulation is that the application for the passing of a final decree has to be filed within three years from the date of deposit of the mortgage money. The said order is under challenge in this civil revision petition.
3. I heard Sri.L.Mohanan, learned counsel appearing for the petitioner. Sri.L.Mohanan, learned counsel appearing for the petitioner contended that the execution court erred in allowing E.A.No.357 of 2011, an application to condone the delay in depositing the value of improvements and that the application for enlargement of time should have been filed on the original side and not on the execution side. The learned counsel contended relying
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on section 5 of the Limitation Act, 1963 that it has no application to an application under Order XXI of the Code of Civil Procedure and therefore, the execution court erred in enlarging the time limit fixed in the final decree for deposit of the value of improvements. The learned counsel contended, canvassing the correctness of the decision of the learned single Judge in **Kuttan Narayanan & Ors. v. Benny Sasi & Ors.** (supra), that the said decision does not lay down the law correctly and requires reconsideration.
4. I have considered the submissions made at the Bar by Sri.L.Mohanan, learned counsel appearing for the petitioner. I have also gone through the pleadings and the materials on record. In the final decree passed on 27.9.2002, the trial court had directed the plaintiff to deposit the sum of Rs.8,117.25 being the value of improvements within two months from the date of the decree. The decree holders did not make the deposit within the stipulated time of two months. They deposited the value of improvements only on 28.10.2003. They thereafter filed E.P.No.548 of 2003 to execute the final decree. That execution petition was dismissed in view of the pendency of an appeal from the final decree. Later, after the appeal was dismissed and the final decree attained finality, the decree holders filed E.P.No.366 of 2010. At that stage the fourth judgment debtor raised an objection that there was delay in depositing the
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value of improvements. That prompted the decree holders to file E.A.No.357 of 2011 wherein they sought condonation of delay in depositing the value of improvements. The stand taken by the fourth judgment debtor is that the delay cannot condoned applying section 5 of the Limitation Act, 1963 as it has no application to proceedings under Order XXI of the Code of Civil Procedure. In my opinion, as the court executing the decree is the court which passed the decree, it could have enlarged the time limit stipulated in the final decree for deposit of the value of improvements by entertaining an application on the original side. That apart, the relief sought in E.A.No.357 of 2011 was not to condone delay in filing an execution petition under Order XXI of the Code of Civil Procedure but only to condone the delay in depositing the value of improvements. Merely for the reason that the application was filed in the execution petition does not lead to the inference that the application was filed under Order XXI of the Code of Civil Procedure. I therefore find no merit in the objection raised by the petitioner to the maintainability of E.A.No.357 of 2011. I am also of the considered opinion that no prejudice whatsoever is caused to the petitioner by reason of the court enlarging the period fixed by it in the final decree for deposit of the value of improvements. The final decree does not stipulate that unless the value of improvements is
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deposited within the stipulated time, the right to redeem the mortgage will stand forfeited. The final decree only stipulated an outer limit within which the value of improvements was to be deposited. Until the value of improvements is deposited, the final decree cannot be executed. That is the only consequence of the stipulation regarding deposit of the value of improvements in the final decree. The liability of the defendants/judgment debtors to deliver possession of the decree schedule property arises only on the value of improvements being deposited. I am therefore of the considered opinion that not even an application was required to enlarge the time for deposit of the value of improvements and that nothing turns on the delay on the part of the decree holders in depositing the value of improvements.
5. That takes me to the question whether the decision of this Court in **Kuttan Narayanan & Ors. v. Benny Sasi & Ors.** (supra) requires reconciliation. In the instant case, the final decree was passed on 27.9.2002. The appeal from the final decree was dismissed only on 5.7.2010. Though earlier the decree holders had filed E.P.No.548 of 2003 within a period of three years from the date of passing of the final decree, that petition was closed in view of the pendency of the appeal from the final decree. The appeal from the final decree was dismissed only on 5.7.2010. E.P.No.366
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## **C.R.P.No.612 of 2013**
of 2010 was filed on 22.12.2010. The execution petition cannot therefore be said to be barred by limitation in view of the provisions contained in Article 136 of the Limitation Act which provides for a period of 12 years to execute the decree. In any case, as the final decree was passed on 27.9.2002, the period of 12 years will expire only on 26.9.2014. Therefore by no stretch of imagination can it be said that E.P.No.366 of 2010 which was filed on 22.12.2010 is barred by limitation. In view of the said fact and also for the reason that the mortgage money was deposited long before the final decree was passed and the value of improvements also was deposited on 28.10.2003, no question as regards the delay in deposit of the mortgage amount really arises in the instant case. I therefore find no reason why on the facts of this case, this Court should go into the correctness of the decision in **Kuttan Narayanan & Ors. v. Benny Sasi & Ors.** (supra).
I accordingly hold that no interference is called for with the impugned order. The civil revision petition fails and is dismissed.
Sd/-
## **P.N.RAVINDRAN JUDGE**
**vpv**
