LAKSHMIKUTTY AMMA Vs. PONNU AMMA
HIGH COURT OF KERALA
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(1.) Under the ordinary law, the respondent, an agriculturist mortgagor, would have had to pay the entire mortgage money with (in case such compensation is payable) compensation for improvements, before becoming entitled to recover possession of the property from the appellant mortgagee the mortgage in this case is a possessory mortgage. It is only because of the special provisions of sub-s.(2) of S.11 of Act 31 of 1958 that such a mortgagor becomes entitled to recover the mortgaged property on depositing one half of the mortgage amount together with arrears of interest, if any, and the value of improvements. Even so, it is not until the court makes an order under sub-s.(3) of the section converting, as it were, the possessory mortgage into a simple mortgage for the remaining half of the mortgage amount, that the title of the mortgagee to remain in possession under his mortgage determines that title does not determine on the deposit of only one half of the mortgage amount. That is why sub-s.(2) of the section very properly says that the right to recover possession is subject to the provisions of sub-s.(3); in other words, the right comes into being only when, in addition to the mortgagor having made the deposit, the court has, under sub-s.(3), substituted the possessory mortgage by a simple mortgage by putting the mortgagor in possession and giving the mortgagee a decree for sale in respect of the balance of the mortgage amount.
(2.) As pointed out by Eradi J. in his order referring this case to a division bench, in Abubacker v. Narayana Menon ( 1961 KLT 124 ) (which it may be mentioned was decided before the amendments introduced by Act 2 of 1961) all that was contended by the mortgagee was that he had the right to remain in possession until notice was given to him of the deposit made under sub-s.(2) of S.11. That contention was upheld. Whether the mortgagee did not have the right to remain in possession until his possessory mortgage had been determined under sub-s.(3) of the section, with the consequent right to possession given to the mortgagor by sub-s.(2) coming into being only thereupon, was not considered or decided.
(3.) This apart, it seems to us that the right to apply given by S.11 of the Act being a special remedy, the reliefs that the court can award must be restricted to what is provided by the special remedy and will not extend to all the reliefs which a party instituting a suit on the same cause of action could have sought and obtained. S.11 of the Act makes no provision for the award of mesne profits or for an account in respect of profits. See in this connection the decision in S. A. No. 122 of 1966 which is expressly is point and the division bench ruling in Skaria v. Ackammal Varghese ( 1963 KLT 1170 ) which seems to point to the same result.;
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