THANKAMMA Vs. SANTHAKUMARI ANNUA

JUDGEMENT

(1.) RESPONDENTS 5 to 9 in LA. No. 311 of 1987 in O. S. No. 40 of 1976, on the file of District Munsifs Court at Padmanabhapuram, are the appellants before this Court.

(2.) PLAINTIFF, who is the first respondent herein, filed the suit O. S. No. 40 of 1976, for redemption. The mortgage is dated 21. 11. 1951. The nomenclature of the document is' Otti' of the erstwhile Travancore area. Preliminary decree was passed on 12. 7. 1977, and two months' time was provided for deposit of the mortgage amount. As per the said preliminary decree, an amount of Rs. 2,290. 73 was to be deposited. The mortgagees were not satisfied with the quantum of mortgage money payable to them and, therefore, filed A. S. No. 316 of 1977. There was no stay of proceedings. But, on 23. 2. 1983, the appellate court modified the preliminary decree passed, and an additional amount of Rs. 900 was directed to be deposited. To that extent, preliminary decree passed by the trial court was modified. Within three years, on 30. 9. 1985 the entire amount payable to the mortgages was deposited, and, LA. No. 311 of 1987 was. filed on 4. 2. 1987 to pass a final decree, and final decree was passed on 25. 2. 1988. The mortgagee contended that the application was barred by limitation, which was not accepted by the trial court. The mortgagee filed an appeal as A. S. No. 2 of 1989 against the final decree, without success. It is against the concurrent judgment, appellants have preferred this second appeal.

(3.) IN an earlier Division Bench decision of the Kerala high Court reported in Sulaika Kunju v. Krishna Pillai, 1985 K. L. T. 81, their lordships followed a decision of this Court reported in Gurusami Naidu v. Govindappa Naidu and others, A. I. R. 1933 Mad. 762 and also the decision reported in Sambhunath Auddy v. Tarak Nath Auddy and others, A. I. R. 1965 Cal. 450. IN that case, their Lordships held thus: "the court has jurisdiction under O. 34, Rule 5 of the Code of "civil Procedure as amended in Kerala for extension of time fixed for deposit under O. 34, Rule 4, until such time as the mortgage is itself extinguished by resort to the provisions of foreclosure or sale that may be applicable to mortgages other man usufructuary mortgages as provided for in 0. 34, Rule 4 (b) (ii) of the Civil Procedure Code, as amended in Kerala. " Similar are the provisions in the Code of Civil procedure, as amended by the High Court of Madras.