1. These revisions under Sections 115 of the Code of Civil Procedure (for short, "the Code") and Petition under Article 227 of the Constitution arise from orders passed by the learned Additional Munsiff-II, Neyyattinkara on various applications preferred by the petitioners in the revisions in E.P. No.80 of 1979 in O.S. No.67 of 1957 of that court. Judgment debtors, aggrieved by the respective orders against them have filed the revisions while additional decree holder No.3 who is respondent No.1 in the revisions has filed W. P(C) No.28525 of 2010 aggrieved by that part of the order against him. Parties are referred to as petitioners (in the revisions) and respondent No.1 (petitioner in the Writ Petition).
2. Punnakkulathu tarwad, in Neyyattinkara Taluk owned large extent of properties. While so, Easwara Pillai Krishna Pillai of the tarwad created mortgage over a plot of land called "Charivuvila Purayidom" comprised in Sy.No.478/1B and belonging to the said tarwad in favour of one Padmanabhan Ummini as per a registered document dated, 14.01.1095 M.E. (marked Ext.P9 in the Writ Petition) and described as an `Otti Kuzhikanam Adharam'. Though extent of the property mortgaged is not specified in the document it described the property by survey number and boundaries and in some of the later documents the extent is stated as 3.25 acres while in the survey conducted in the executing court the extent was found to be 3.12 acres. There were four Sakhas in the said tarwad and for enjoyment of properties by the different Sakhas there was a Sakha partition executed between the members of the tarwad in the year, 1099 M.E. The Sakha partition was in respect of properties excluding property covered by the registered mortgage deed dated 14.01.1095 M.E. By that time the mortgagee expired. Two junior members of the tarwad instituted O.S. No.67 of 1957 in the court of learned Principal Munsiff, Neyyattinkara for redemption of mortgage arraying Ummini Nadar Kochappi Nadar, only son of the mortgagee as defendant No.1 and the then Karanavans of the four Sakhas as defendant Nos.2 to 5. The two junior members, plaintiffs in the suit pleaded that they instituted the suit since defendant Nos.2 to 5, Karanavans of the four Sakhas were not amenable to do so and that redemption is sought on behalf of the tarwad. Defendant Nos.2 to 5 did not contest the suit. Defendant No.1 hotly contested the suit raising various grounds but learned Munsiff granted a decree in the suit on March 17, 1959 (the terms of which will be adverted to later while considering contentions of parties). It is not disputed, that decree has become final. In the meantime there were several litigations initiated either by defendant No.1 or others as regards the mortgaged property and claiming right over it. There were also orders of injunction restraining the two junior members executing the decree in O.S. No.67 of 1957. After all those challenges came to an end the decree holders started execution of the decree for redemption in the year, 1961. The attempt to execute the decree was objected by defendant No.1 on the ground that in the meantime he got registry of the land from the Special Tahsildar for kandukrishi lands. That objection was upheld and the execution petition was dismissed which was confirmed in appeal. In the meantime plaintiff No.2-decree holder No.2 expired. Plaintiff No.1-decree holder No.1 filed S.A. No.846 of 1963 in this Court against defendant No.1-judgment debtor No.1. The Second Appeal was allowed as per judgment dated, July 4, 1967. Objection raised by defendant No.1 was overruled and this Court held that executing court as well as the first appellate court acted erroneously and illegally in refusing to execute the decree according to its tenor. In the meantime defendant No.1, only son of the mortgagee had gifted his right in the hypotheca to his sons - Krishnan Nadar and Kesavan Nadar (1.56 acres each) as per document No.3609 of 1965. The 1.56 acres gifted to Krishnan Nadar was towards west of the entire hypotheca while the eastern 1.56 acres was given to Kesavan Nadar. After the judgment dated July 4, 1967 in S.A. No.846 of 1963, plaintiff No.1- decree holder No.1 expired. While so Krishnan Nadar settled 50 cents (out of the 1.56 acres forming the western portion of the hypotheca) in favour his daughter, Anitha Krishnan as per settlement deed No.776 of 1996. The legal heirs of deceased decree holder No.1 assigned right to execute the decree (in O.S. No.67 of 1957) and their undivided right in the mortgaged property in favour of respondent No.1 as per assignment deed Nos.2840 and 2861 of 1997. On the strength of the said assignment deeds respondent No.1 sought impleadment in the execution petition - E.P. No.80 of 1979. That was objected by the judgment debtors who prevailed in the executing court. Respondent No.1 challenged that order in C.R.P. No.2700 of 1999. By order dated November 23, 1999 this Court allowed the revision and ordered impleadment of respondent No.1 as additional decree holder No.3 in E.P. No.80 of 1979. In the meantime Anitha Krishnan assigned the 50 cents she got as per settlement deed No.776 of 1996 in favour of petitioner in C.R.P. No.468 of 2010 as per document No.550 of 2001. The said 50 cents is described as situated towards south-western portion of the 1.56 acres which forms the western portion of the total extent of 3.12 acres (mortgaged property). Petitioner in C.R.P. No.468 of 2010 constructed buildings in the said 50 cents. Petitioners in C.R.P. Nos.466 and 478 are legal heirs of the deceased mortgagee.
3. In the meantime, members of the 4th Sakha of the tarwad (who are legal heirs of deceased decree holder No.2) executed assignment deed Nos.989 and 990 of 1998 in favour of one Binu Krishnan transferring their right over a total extent of 74 cents in `Kadappuravaram Puduval Purayidom' comprised in Sy. Nos.478/1B (Binu Krishnan is the petitioner in C.R.P. No.404 of 2010).
4. In the meantime predecessor-in-interest of petitioners in C.R.P. Nos.404, 466, 468 of 2010 along with petitioners and respondent No.18 in C.R.P. No.478 of 2010 who were judgment debtors in E.P. No.80 of 1979 objected to execution on the ground that execution petition is barred by limitation and that respondent No.1 is not entitled to execute the decree. Executing court upheld that objection and dismissed E.P. No.80 of 1979. Respondent No.1 challenged that order in this Court in C.R.P. No.756 of 2008. This Court by order dated March 26, 2010 rejected all the contentions raised by the judgment debtors - petitioners and respondent No.18 in C.R.P. No.478 of 2010 and predecessor-in-interest of petitioners in C.R.P. No.404, 466, 468 of 2010 and found that respondent No.1 - additional decree holder No.3 is entitled to execute the decree. This Court also observed that since judgment debtors or their predecessors-in- interest had failed to raise the contentions in the execution petition of the year 1961, they are precluded from raising such contention in the present execution proceeding - E.P. No.80 of 1979 on the principle of constructive res judicata. This Court directed the executing court to complete execution proceeding as expeditiously as possible and at any rate within six months from the date of receipt of the records and copy of the order.
5. In the meantime Binu Krishnan executed various assignment deeds in respect of portions of the said 74 cents. Fifteen cents was assigned to the petitioner in C.R.P. No.468 of 2010 as per assignment deed No.1832/2010 dated 13.07.2010; thirty cents was assigned to the petitioner in C.R.P. No.466 of 2010 (he is also a legal heir of the deceased mortgagee) as per registered sale deed dated 14.07.2010 and another nine cents was assigned in favour of petitioners in C.R.P. No.478 of 2010 (who are also legal heirs of the deceased mortgagee) as per a registered assignment deed dated 16.07.2010. Thus out of the 74 cents which Binu Krishnan got as per document Nos.989 and 990 referred to above him assigned 54 cents in favour of petitioners in C.R.P. Nos.466, 468 and 478 of 2010. Binu Krishnan (petitioner in C.R.P. No.404 of 2010) has retained the remaining 20 cents. On the strength of the above assignment deeds Binu Krishnan (petitioner in C.R.P. No.404 of 2010) filed E.A. No.399 of 2010. He prayed for an order that he has right, title, interest and possession over the said 74 cents (notwithstanding that by that time he had assigned 54 cents out of 74 cents). Petitioner in CR.P. No.466 of 2010 filed E.A. No.709 of 2010 while petitioners in C.R.P. No.478 of 2010 filed E.A. Nos.625 and 712 of 2010. Petitioners in C.R.P. Nos.466, 468 and 478 claimed that since they have acquired undivided right of decree holder No.2, the co- mortgagor and they have also acquired either by assignment or by operation of law right of the mortgagor over the property there is fusion of right of mortgagor and mortgagee in them and hence they are not liable to be physically evicted from the suit property.
6. After the order in C.R.P. No.756 of 2008, respondent No.1-additional decree holder No.3 deposited the mortgage money in the executing court on 22.7.2010 as per a memo. Petitioners thereafter filed application in the executing court objecting to the execution. Executing court while dismissing E.A. Nos.399 of 2010, 709 of 2010, 625 of 2010 and 712 of 2010 allowed E.A. No.693 of 2010 in part holding that the 74 cents over which the petitioner in C.R.P. No.404 of 2010 laid hands vide assignment deed Nos.989 and 990 of 1998 is not liable to be physically delivered to respondent No.1. Petitioner in E.A.No.399 of 2010, challenging the dismissal of that application has filed C.R.P. No.404 of 2010 while petitioner in E.A. No.709 of 2010 challenges dismissal of that application in C.R.P. No.466 of 2010. Dismissal of E.A.Nos.625 and 712 of 2010 are under challenge in C.R.P. No.478 of 2010. Petitioner in E.A. No.693 of 2010 is aggrieved to the extent that executing court ought to have found that there could be no physical delivery of possession of the entire property and not merely the 74 cents and challenging that part of the order in E.A.No.693 of 2010 has filed C.R.P. No.468 of 2010. Respondent No.1 is aggrieved by the order on E.A.No.693 of 2010 to the extent that executing court held that he is not entitled to get physical delivery of 74 cents out of the decree schedule property and that part of the order is under challenge in W.P(C) No.28525 of 2010.
7. The following contentions are raised by learned counsel for petitioners in the revision petitions:
(1) The decree passed in O.S. No.67 of 1957 can only be treated as a preliminary decree and hence is not executable. At any rate the mortgage money having not been deposited within six months from the date of decree (March 17, 1959), respondent No.1 could not have deposited the mortgage money in the executing court and in the absence of trial court extending time for deposit of the said amount for good cause.
(2) The decree for redemption was for and on behalf of the tarwad and hence all the members of the tarwad are co- mortgagors entitled to execute the decree. Petitioners in the revisions having acquired undivided right of the legal heirs of additional decree holder No.2 and petitioners in C.R.P. Nos.466, 468 and 478 of 2010 having acquired right of mortgagee as well they are not liable to be evicted from the decree schedule property. Remedy if any of respondent No.1 is to sue for partition and separate possession of his share in the mortgaged property. Respondent No.1 while resisting the above contentions raised the following contention:
(3) The assignments in favour of petitioners in the revisions are hit by Section 52 of the Transfer of Property Act (for short, "the Act") and hence it cannot affect execution of the decree.
8. Point No. 1. Advocate Shri P.B. Krishnan, learned counsel for petitioners in C.R.P. Nos.404 and 466 of 2010 and Advocate Shri G.P. Shinod, learned counsel for petitioners in C.R.P. No.478 of 2010 have contended that at the time learned Munsiff passed the decree on March 17, 1959 the Code of Civil Procedure, 1908 was in force and hence the court was bound to pass a preliminary decree followed by a final decree. Learned counsel contended that in this case there is only one decree which has all the characteristics of a preliminary decree going by the tenor of the decree and Rule 7 of Order XXXIV of the Code (of 1908) and hence the decree is not executable. Further contention is that at any rate the registered mortgage deed dated 14.01.1095 M.E. being an anomalous mortgage plaintiffs were bound to deposit the mortgage money, in the absence of any time limit specified in the decree, within six months from the date of the decree. Respondent No.1-additional decree holder No.3 deposited the mortgage money in the executing court only on 22.07.2010, years after the decree dated March 17, 1959 and that cannot be reckoned as a deposit as contemplated under Rule 8 of Order 34 of the Code (of 1908). It is contended that power for extension of time for deposit of the mortgage money is vested only with the trial court and not with the executing court and even the trial court could extend the time only on good cause being shown. In the present case not only that deposit was not made in the trial court, but in the execution court, there was no application for extension of time for deposit, not to say about absence of any good cause for such extension. But the amount was merely deposited as per a memo which cannot be taken into account. The decree is not executable, it is argued. It is also contended by learned counsel that the fact that the above objection was not raised at any previous stage of the proceeding either in execution or otherwise will not preclude petitioners raising the objection in execution since principle of res judicata cannot apply in the matter of jurisdiction of the court based on a pure question of law alone. Reliance is placed on the decisions in Murugesa Mudaly v. Ramasawmi Chetty (AIR 1916 Madras, 882), Gyan Singh v. Ata Husain (AIR 1921 Allahabad 56), Rev. Fr.Victor Fernandez v. Albert Fernandez (1971 KLT 216), Vivekanandan v. Sadasivan (1975 KLT 1), Narayana Rao v. Laxmi Amma (1994 (2) KLT 317 (F.B.) Mohammed Abdul Khader v. Kunju Sayed (1997 [1] KLT 53 (SC), Sudeh Vithal v. Sadanand Shivrao Koppal ([1998] 8 SCC 591) and Golvindan Nair v. Abraham (2002 [3] KLT 630).
9. Learned counsel for respondent No.1, Shri P.B. Suresh Kumar contended that the above objection of petitioners cannot be entertained and at any rate cannot stand legal scrutiny. It is pointed out that predecessors-in-interest of petitioners and even the petitioners in C.R.P. No.478 of 2010 (who themselves were on record as judgment debtors) did not raise any such objection at the appropriate stage (before the present execution applications were filed in the executing court) and hence are precluded by law from raising objection regarding the executability of the decree. It is also argued that even if it is assumed that as the Code of 1908 stood as on the date of the decree (March 17, 1959) preliminary and final decrees were required to be passed but no such separate decrees were passed, there is nothing illegal in the court passing a composite decree as there was no dispute regarding the mortgage money payable, the object of passing a preliminary decree being to ascertain the mortgage money and interest if any, payable thereon to the mortgagee. According to the learned counsel failure to pass a preliminary and final decree at the worst is only an irregularity which cannot be raised in the executing court. It is pointed out that the decree which is sought to be executed has all the characteristics of a final decree and there is nothing illegal in executing the same. Reliance is placed on the decisions in M.Muthiriar v. Ayyathurai (AIR 1978 Madras 246), Mosa Rajayya v. Jacob Haris (AIR 1981 Kerala 135), Nalnar Mohammed Rowther v. Minor Vijayasankar (1988 MLJ 407), Radhabai Yashwant Dhotre v. Abaji Janoji Haikodi (AIR 1995 Bombay 439), Sayeeda Khatoon v. Bibi Sayeeda Tahira Nahid (2001 [2] BLJR 1493), Aboobacker Babu Haji v. Pathummakutty Umma (2002 [2] KLT 589) and Barkat Ali v. Badri Narain (2008 [1] KLT 1022).
10. It is not very much in dispute that as on the date learned Munsiff passed the decree, the Code of Civil Procedure 1908 applied and hence this being a suit for redemption of mortgage it was required to pass a preliminary and final decree as contemplated under Rules 7 and 8 of Order XXXIV of the Code of 1908. It is also not disputed that learned Munsiff passed only one decree, the one dated March 17 1959. Question is whether that decree is only a preliminary decree as contended by learned counsel for petitioners or it by itself is a final decree as contended by learned counsel for respondent No.1. To decide that, it is necessary to refer to the relevant provisions of the Code of 1908 and the decree under challenge.
11. Rule 7 of Order XXXIV of the Code, 1908 states that in a suit for redemption if the plaintiff succeeds, the court shall pass a preliminary decree ordering that an account be taken of what was due to the defendant on the date of such decree for the principal and interest on the mortgage, the costs of suit, if any awarded to him, and other costs, charges and expenses properly incurred by him upto that date, in respect of his mortgage security, together with interest thereon; or declaring the amount so due at that date. Rule 7 also required the court to direct plaintiff that if he paid into court the amount so found or declared due on or before such date as the court may fix within six months from the date on which the court confirms and countersigns the account taken the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant. Rule 8 of Order XXXIV refers to the passing of final decree and states that in the circumstances stated therein the court shall order the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary, ordering him to re-transfer at the cost of the plaintiff the mortgaged property, also, if necessary, ordering him to put the plaintiff in possession of the said property.
12. The operative portion of the judgment dated March 17, 1959 states as under:
"In the result the plaintiffs are given a decree for redemption of the plaint property on behalf of Punnakkulathu tarwad on deposit of the mortgage amount of Rs.294.75 Np and the value of the improvements that will be assessed by the first defendant in execution. The plaintiff is allowed interest at 12% for three years from the date of service of notice of deposit of the mortgage amount and value of improvements on the first defendant or till recovery of the property whichever happens first. The first defendant is allowed to draw the value of improvements that will be deposited by the plaintiffs. The first defendant is allowed his costs. Declared in open court the 17th day of March, 1959."
In accordance with the above, a decree was also drawn up. It is argued by learned counsel, Shri P.B. Krishnan and G.P. Shinod that the decree does not direct delivery of document or possession of the mortgage security to the plaintiffs which is the essential characteristics of a final decree and hence the decree cannot be treated as a final decree. It is also their argument that though the decree does not state the time within which mortgage money was to be deposited; going by Rule 7 of Order XXXIV of the Code the deposit should have been made within six months from the date of the decree. According to the learned counsel mortgage deed dated 14.01.1095 could be treated as only as an anomalous mortgage. It is in support of that contention learned counsel having placed reliance on the decisions in Rev. Fr. Victor Fernandez v. Albert Fernandez and Vivekanandan v. Sadasivan (supra).
13. In the said decisions nature and character of a document styled as `Otti Kuzhikanom' was discussed. It is seen from the order of this Court dated March 26, 2010 in C.R.P. No.756 of 2008 that with petitioners in C.R.P. No.478 of 2010 and predecessors-in-interest of petitioners in C.R.P. Nos.404, 466 and 468 of 2010 on record this Court proceeded on the basis that the transaction covered by the registered deed dated 14.01.1095 M.E. is a usufructuary mortgage. That order has become final. In such a situation it is not open to this Court to go behind the order dated March 26, 2010 and hold that mortgage deed dated 14.01.1095 ME is not a usufructuary mortgage but is an anomalous mortgage. That is a contention which petitioners or their predecessors-in-interest ought to have urged in C.R.P. No.756 of 2008 or in the prior proceedings. It is not disputed that so far as redemption of usufructuary mortgage is concerned there is no time limit for deposit of mortgage money and the only limitation is that the application for final decree must be filed within three years of deposit of the mortgage money in view of Article 137 of the Limitation Act. Even if it is assumed that the mortgage deed dated 14.01.1095 M.E. is an anomalous mortgage in view of Sec.57 of the Act the anomalous mortgagee gets a right for foreclosure only if the deed of mortgage conferred on him such a right and in the absence of such a right and since mortgage deed dated 14.01.1095 only contained a personal covenant the mortgagee could only have sued for mortgage money and brought the mortgaged property for sale for recovery of the mortgage money. No such thing has happened in this case.
14. I must also refer to the wordings of the decree in the case. Going by the decree, it would appear to me that plaintiffs were permitted to deposit the mortgage money in execution (I have extracted above the operative portion of the judgment) which says that the plaintiff is allowed interest at 12% per annum for three years from the date of service of notice of deposit of the mortgage amount and value of improvements on the first defendant or till recovery of the property whichever happens first. The decree also states that value of improvements is to be assessed in execution. The decree directs deposit of mortgage money and value of improvements in execution and notice thereof to defendant No.1 plaintiffs are allowed interest at the rate of 12% for three years from the date of service of notice to defendant No.1. Deposit of mortgage money and value of improvements was not contemplated on two different dates but it was meant to be simultaneous so that plaintiffs could recover interest for three years from the date of service of notice of such deposit (of both the amounts). There is weight in the contention of learned counsel for respondent No.1 - Shri P.B. Suresh Kumar that the decree permitted the plaintiffs to deposit mortgage money in the course of execution.
15. In Murugesa Mudaly v. Ramasawmi (Supra) referring to the Code of 1908 it is held that the power to extent time for payment of mortgage money is regulated by Rules 7 and 8 of Order XXXIV and that court can only extend time upon good cause shown. In Gyan Singh v. Ata Husain (supra) it is held that though no time was fixed in the preliminary decree for payment of mortgage money, that period could not be anything more than the period prescribed in Rule 7 of Order XXXIV of the Code (of 1908). In Mohammed Abdul Khader v. Kunju Syed (supra) the Supreme Court held that even in cases where the court may have omitted to prescribe time for payment of mortgage money under the preliminary decree that time in no case could exceed six months from the date of passing of the decree. Sudesh Vithal v. Sadanand Shivrao Koppal (supra) was a case where preliminary decree was not prepared in accordance with Rule 7 of Order XXXIV of the Code and consequently, application for final decree as contemplated under Rule 8 could not be filed by plaintiffs within the period prescribed under Article 137 of the Limitation Act. There, necessity to draw up a preliminary decree in accordance with Rule 7 of Order XXXIV was highlighted and it was held that doing so is necessary to enable plaintiff pay the amount in question whereafter he can ask for preparation of a final decree as would appear from a reading of Rule 8 of Order XXXIV of the Code.
16. So far as the decree in the present case is concerned it directs payment of mortgage money of Rs.294.78 Np. It also provides for payment of costs to defendant No.1 (sole legal heir of the mortgagee). Value of improvements was to be assessed in execution. It says that plaintiffs are given a decree for redemption of the property. In other words decree allowed plaintiffs to redeem the property. The word "redemption" is explained in Black's Law Dictionary, 6th Edn, as meaning "realisation of a right to have title of property restored free and clear of the mortgage; performance of the mortgage obligation being essential for that purpose." It also gives the meaning, "a repurchase; a buying back, act of a vender of the property in buying it back again from the purchaser at the same or an enhanced price, process of annulling and revoking a conditional sale of property by performance of the conditions on which it was stipulated to be revocable". To "redeem" means to "get back". Hence when the court allowed 'redemption' it meant that plaintiffs were permitted to take back the property from defendant No.1 (sole legal heir of mortgagee). Absence of specific words that defendant No.1 is to deliver up the documents or deliver possession of the property does not militate against the tenor of the decree which permits plaintiffs to redeem the property on deposit of the mortgage amount and value of improvements. Hence I am unable to accept the argument of learned counsel for petitioners that the decree in question is only preliminary in character and in the absence of a final decree that decree is not executable.
17. There are other obstacles also in the way of petitioners. Assuming that court ought to have passed separate decrees but not done, it is not as if the decree passed in the case is without jurisdiction so that execution court could refuse to execute the decree. Even going by Rule 7 of Order XXXIV of the Code (of 1908) the purpose of passing a preliminary decree is to ascertain the mortgage money and interest if any payable to the mortgagee. If there was no dispute as to the amount of mortgage money or, mortgage money has already been deposited or, payment of mortgage money is provided in the decree itself, absence of final decree as referred to in Rule 8 of Order XXXIV of the Code cannot be said to affect the executability of decree. In M.Muthiriar v. Ayyathurai (supra) it is stated that Rules 7 to 9 of Order XXXIV of the Code of 1908 contemplated passing of a preliminary decree and final decree at a later stage to give opportunity to the mortgagor to deposit the mortgage money due to the mortgagee. But in a case where there is no dispute regarding the amount due to the mortgagee and the mortgagor deposited the mortgage amount even at the time of filing of the suit, the court was not without jurisdiction to straight away pass a final decree for redemption. A similar situation was considered by this Court in Mosa Rajayyan v. Jacob Haris (supra). There, the decree was passed on 31.03.1967 and the mortgage money was deposited in court on 09.12.1977. It was contended that the decree was not preceded by a preliminary decree and hence is not executable. This Court held that the contention that the decree is bad, is not capable of being executed as a preliminary decree did not precede the decree sought to be executed and that there was no direction to pay the mortgage money within the period stipulated in Rule 7 of Order XXXIV and as a matter of fact the amount was deposited only on 09.12.1977 cannot hold good for the simple reason that the decree has become final, execution petition has been filed within the period of limitation and the court has found that the amount as directed in the decree has already been deposited. Nainar Mohammad Rowther v. Minor Vijayasankar (supra) was a case where the court straight away passed a final decree without passing a preliminary decree. Court considered the question whether decree was executable. Relying on the decision in Mosa Rajayyan v. Jacob Haris it was held that executability of the decree cannot be challenged on the said ground. The same view was taken by the Bombay High Court in Radhabai Yashwant Dhotre v. Abaji Janoji Haikodi (supra). In Aboobacker Babu Haji v. Pathummakutty Umma (Supra) it was held that so far as no prejudice is caused to the party by having one decree or two decrees there could be no valid objection regarding that.
18. I stated that the decree became final and the deceased defendant No.1 had challenged execution petition of the year, 1961 on various grounds but ultimately lost in S.A. No.846 of 1963. No contention was urged in the said proceeding that the decree is not executable for the reason that it is only a preliminary decree or that before filing of the execution petition mortgage money was not deposited. This Court while disposing of S.A. 846 of 1963 directed executing court to "proceed with the execution of the decree in accordance with its tenor". I must also bear in mind that petitioners and respondent No.18 in C.R.P. No.478 of 2010 and predecessor-in-interest of petitioners in C.R.P. Nos.404, 466 and 468 of 2010 did not raise such a contention when this Court was considering C.R.P. No.756 of 2008. Nor was any such contention raised in C.R.P. No.2700 of 1999. It is pertinent to note that respondent No.18 in C.R.P.No.478 of 2010 who is one of the legal heirs of the mortgagee filed W.P(C) No.19785 of 2010 in this Court (before respondent No.1 deposited the mortgage money) but the only contention urged against executability of the decree was that value of improvements payable to the mortgagee or his legal heirs/representatives has not been assessed by the executing court. She only sought for a direction in that way. No objection to the executability of the decree on the ground of non-deposit of mortgage money or there being no preliminary and final decrees was then also.
19. It is not disputed that judgment debtors were served with notice under Rule 22 of Rule XXI of the Code when execution petitioner of the year 1961 was filed. Executability of the decree on whatever ground was available ought to have been raised at that stage. Judgment debtors did not do so. If that be so, they or their legal representatives are precluded from raising such a contention at a later stage. In Barkat Ali v.Badri Narain (supra) it is held that where judgment debtor had the opportunity to raise objection regarding executability of the decree at the stage of Rule 22 of Order XXI of the code and is not raised, he is precluded from raising such objection on the principle of constructive res judicata which is applicable to execution proceeding as well.
20. Learned counsel, Shri P.B. Krishnan argued that this is a matter affecting jurisdiction of the executing court and hence the principle of constructive res judicata cannot apply. To support that argument reliance is placed on the decision in Govindan Nair v. Abraham (supra) where it was held that court cannot assume jurisdiction which it does not have under the statute and in such a situation question of res judicata does not arise. There could be no doubt for the proposition that the principle of res judicata or constructive res judicata cannot apply in the matter of jurisdiction of a court depending on the interpretation of a statute. That is not the factual situation in the present case in the light of what I have stated above. Thus objection raised to the executability of the decree has to fail. It fails.
21. Point Nos.2 & 3: These points can be considered together for convenience. I referred to the derivation of title on which parties before me rely. Though petitioners in the revisions claimed in the executing court that they have obtained the equity of redemption from the co-mortgagors by the respective assignment deeds stated above in respect of the hypotheca it is revealed from document Nos.998 and 990 of 1998 executed in favour of Binu Krishnan (petitioner in CRP 404 of 2010) that the said documents are not concerning "Cheruvuvila purayidom" comprised in Sy.No.478/1B which is the subject matter of mortgage as per registered deed dated 14.01.1095 M.E., but it concerns "Kadppuravarom Puduval Purayidom" comprised in Sy.No.478/1B. Exhibit P9 in W.P(C) No.28525 of 2010 is the copy of mortgage deed No.3174 of 1095 dated 14.01.1095 (M.E.). It is concerning "Cheruvuvila Purayidom". Exhibit P5 in W.P(C) No.28525 of 2010 is the copy of sale deed No.989 of 1998 in favour of Binu Krishnan (petitioner in C.R.P. No.404 of 2010). It is concerning "Kadappuravarom Puthuval Puradyidom". Executants traced their title to partition deed No.5250 of 1956, a copy of which Ext.P6 in W.P(C) No.28525 of 2010. That document concerns 55= cents in "Kadappuravarom Puthuval Purayidom". That partition deed traces title to partition deed No.226 of 1108 (a copy of which is Ext.P7 in W.P(C) No.28525 of 2010). That is a partition deed executed by one Sakha of Punnakkulathu tarwad where title is traced to the Sakha udampady No.1766 of 1099 (its copy is Ext.P8 in W.P(C) No.28525 of 2010). A reading of these documents would show that arrangements made by the said documents did not concern property covered by the Otti (mortgage). It is well to remember that Easwara Pillai Krishna Pillai who created the mortgage as per document No.3174 of 1095 M.E was also a party in document No.1766 of 1099 M.E referred to above. There could have been no partition of the properties at that time as the Travancore Nair Act came into force only in the year, 1100 M.E and until then Nairs of Travancore had only a limited right of enjoyment of the property and there was no right of partition. What was dealt with, therefore was only the property held by the Sakha for enjoyment as referred to in document No.1766 of 1099 M.E. It did not cover 'Cheruvuvila Purayidom' over which mortgage was created. The assignment deeds in favour of Binu Krishnan, petitioner in C.R.P. No.404 of 2010 did not relate to the mortgaged property.
22. When confronted with the above factual situation learned counsel for petitioner in C.R.P. No.468 of 2010, Shri G.S.Reghunath and supplementing his arguments learned counsel for petitioners in other revisions contended that going by the tenor of the decree in the case, redemption was for and on behalf of the tarwad and hence all the members of tarwad are co- mortgagors along with the two junior members who filed the suit and obtained the decree. It is contended that by the assignment deeds in favour of Binu Krishnan (petitioner in C.R.P. No.404 of 2010) and on his assigning 30 cents to the petitioner in C.R.P. No.466 of 2010, 15 cents to the petitioner in C.R.P. No.468 of 2010, 9 cents to the petitioners and respondent No.18 in C.R.P. No.478 of 2010 and himself retaining right over the remaining portion of the said 74 cents petitioners in the revisions have acquired equity of redemption in the mortgaged property belonging to Punnakkulathu tarwad which remained undivided so far and thus there is a fusion of right of mortgagee and mortgagor in them which rendered the decree inexecutable by physical delivery. According to the learned counsel at the best respondent No.1 can only have symbolic delivery of the property and his remedy is to sue for partition and separate possession of his share which according to the learned counsel is only a miniscule share in the property of the tarwad. Learned counsel for respondent No.1 in response contended that petitioners being legal representatives of the judgment debtors are not entitled to set up any independent right for them under Sec.47 of the Act. Their claim can only be in tune with the contentions already raised by their predecessors-in-interest - judgment debtors. It is also contended by learned counsel that though judgment and decree in the suit state that redemption is on behalf of the tarwad it only indicated right of tarwad in the hypotheca and the right to redeem the property. The statement in the judgment and decree that redemption is on behalf of the tarwad has no other legal consequence. Learned counsel contends that junior members of the tarwad redeeming the mortgage spending money from their pocket do not stand on the same pedestal as a Karanavan of tarwad redeeming mortgage on behalf of the tarwad. According to the learned counsel in view of Sec.92 of the Act, junior members of a tarwad redeeming the mortgage spending money from their pocket are entitled to get physical possession of the property and to remain in such possession until other members of the tarwad got their share in the property separated by a decree for partition and separate possession on payment of their share in the mortgage money paid by the junior members. Counsel on both sides placed reliance on a number of authorities in support of their respective contentions which I shall advert to later.
23. The operative portion of the judgment and and decree state that plaintiffs are allowed to redeem the mortgage on behalf of Punnakkulathu tarwad. It is not disputed that plaintiffs were two junior members of the tarwad and going by the copy of judgment given to me for perusal, they stated that they were constrained to file the suit since defendants Nos.2 to 5 who were karanavans of four Sakhas of the tarwad were not amenable to that (i.e., to sue for redemption of the mortgage). It is true that in the judgment and decree it is stated that plaintiffs are granted decree for redemption of the mortgage on behalf of the tarwad. What is the legal connotation for that expression (for the tarwad)? The status of junior members of the tarwad redeeming the mortgage was considered by this Court in various decisions. In Sreekumaran Nair v. Velayudhan Nair (1994 [1] KLT 816), reference was made to the decision of another Division Bench in Krishna Pillai v. Bharathi Amma (1957 KLT 732) where it was observed as follows:
"There is again the case in Ponnan Erayimman v. Kauliambi Kumaran - 6 TLJ 89 where the junior members who had redeemed a mortgage from the tarwad and were in possession were allowed successfully to question a melotti given by the Karanavan on foot of which they were sought to be redeemed in turn. What are of present interest to us in this case, is the observations of Raman Menon, C.J. At page 95.
"It seems to me to be anomalous to regard Anandravers who find themselves in the situation of defendants 6 and 7, as the representatives of their tarwad, which is their mortgagor"
These observations seem to imply that junior members who have redeemed tarwad mortgages from strangers could still not be taken to be representatives of the tarwad in the matter. Our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until accounts are settled and paid off."
Referring to the said decisions it was held in Sreekumaran Nair v. Velayudhan Nair (supra) that a junior member of a joint family or a tarwad who redeems the family property by utilising his own funds for paying off the mortgage money stands on a different footing and his position will be that of a redeeming co- mortgagor. If that be so. The redeeming co-mortgagor is entitled to be in possession of the property until his share of the mortgage money is paid off and other co-mortgagors sued for partition or other reliefs as contemplated by law.
24. Learned counsel for petitioners argued that since respondent No.1 deposited the mortgage money only on 22.7.2010 and before that the equity of redemption of the co- mortgagors was acquired by petitioners by the various assignment deeds (referred to above), integrity of the mortgage is broken and hence respondent No.1 is not entitled to get physical delivery of possession of the property. According to the learned counsel there is fusion of interest of the mortgagee and mortgagor with the petitioners and hence physical delivery of possession of the property to respondent No.1 is not permissible. Reliance is placed on the decisions in Khelat Chandra v. Peary Lal (AIR [36] 1949 Calcutta 155), Kunjan Govindan v. Bhagavathi Lekshi (1958 KLT 328), Joseph v. Sukumara Panicker (1966 KLT 842), Govindan v. Bhaskaran (1992 [2] KLT 577), M.P. Ahmed v. Kuthiravattam Estate Receiver (AIR 1997 SC 208), Jagdish Dutt v. Dharampal ([1999] 3 SCC 644) and Achalda Durgaji Oswal v. Ramvilas Gangabisan Heda (AIR 2003 SC 1017).
25. Learned counsel, Shri P.B. Suresh Kumar argued that the above decisions have no application to the facts of the case and that the principle of lis pendense under Section 52 of the Act applied to all the assignment deeds relied on by petitioners. According to the learned counsel assignments were made during pendency of the suit, after passing of the decree and even after this Court disposed of C.R.P. No.756 of 2008 and hence those assignments cannot affect right of respondent No.1 to execute the decree and get physical possession of the property, remedy of petitioners if any being to sue for partition and separate possession of the share claimed by them after paying their share in the mortgage money and other amounts due to respondent No.1. Learned counsel has placed reliance on the decisions in Naro Hari Bhave v. Vithal Bhat (1886 [10] ILR Bombay 648), Kannur Pillai v. Govindan 1954 KLT SN 15 (Case No.41), and Amruthappa v. Abdul Rasool (AIR 1988 Andhra Pradesh 215). It is also argued by learned counsel that question of breaking integrity of the mortgage would arise only when the entire right of the mortgagors is acquired by the mortgagee and not when a fractional interest of one of the co- mortgagors is acquired by the mortgagee or his legal representatives.
26. It is relevant to note the following dates and transactions: Binu Krishnan, petitioner in C.R.P. No.404 of 2010 (who filed E.A. No.399 of 2010 in the executing court) acquired right over 74 cents in Kadappuravarom Puduval Purayidom as per document Nos.998 and 990 of 1998. With petitioners and respondent No.18 in C.R.P.No.478 of 2010 (who also are legal heirs of deceased mortgagee) and other judgment debtors - predecessors-in-interest of petitioners in other revisions on record, this Court disposed of C.R.P. No.756 of 2008 on 26.03.2010 and parties were directed to appear in the executing court on 09.04.2010. Petitioner in C.R.P. No.404 of 2010 (Binu Krishnan) filed E.A. No.399 of 2010 and that application was dismissed on 17.05.2010. He obtained a copy of that order on 14.06.2010 and filed a Writ Petition in this Court on 21.06.2010. That Writ Petition was closed on 22.06.2010 with liberty to file a revision under Sec.115 of the Code. Executing court in the meantime ordered delivery of property on 15.05.2010. Respondent No.18 in C.R.P. No.478 of 2010 (who along with petitioners therein filed E.A.Nos.625 and 712 of 2010 in the executing court) filed W.P(C) No.19785 of 2010 claiming that value of improvements as directed in the decree has not been assessed and hence the executing court may be directed to ascertain the value of improvements. That Writ Petition was allowed. It is thereafter that Binu Krishnan (petitioner in C.R.P. No.404 of 2010) effected the three assignments in favour of petitioners in C.R.P. Nos.466, 468 and 478 of 2010. In short all those transactions (under which petitioners in the revisions (other than petitioner in C.R.P. No.404 of 2010) claim equity of redemption) were entered into after 22.07.2010. Thereafter Binu Krishnan filed C.R.P. No.404 of 2010 on 29.07.2010. Thus it is clear that it is after this Court disposed of C.R.P. No.756 of 2008 directing the executing court to execute the decree that petitioner in C.R.P. No.404 of 2010 executed assignment deeds in favour of petitioners in other revisions.
27. It is not disputed that right and interest of respondent No.1 in the mortgaged property as a co-mortgagor remains. He has acquired the right to execute the decree. Whatever be the extent of share of respondent No.1 in the suit property, it remains in tact. It is only the rest of right of the co-mortgagor that is claimed to be acquired by petitioners in the revision petitions. Question is whether in such a circumstance it could be said that even if petitioners have got assignment of equity of redemption in their favour before deposit of the mortgage money on 22.07.2010 integrity of the mortgage is broken so that respondent No.1 is left with no remedy in this case and he has to go for another suit for partition. Petitioners made heavy reliance on the decision in Khelat Chandra v. Peary Lal (supra). There of course acquisition of right of co-mortgagor by the mortgagee was subsequent to filing of the suit. It was held that the decree as it stood i.e., after the transfer of interest of one of the decree holders to one of the judgment debtors may be regarded as one for joint possession of the remaining decree holders and executed in the manner prescribed under Order XXI Rule 35(2) of the Code (by symbolic delivery). Learned Judge observed that delivery of physical possession in such a situation is not permissible and that contingency can be avoided by directing symbolic possession under Rule 35(2) of Order XXI of the Code. But the view taken by the Division Bench of this Court in Narayani Amma v. Govindan Nambi (1994 [2] KLT 485) is not in accordance with the said view. There, it was held that when the right and interest of some of the decree holders is acquired by some of the judgment debtors it did not prevent the remaining decree holders to execute the decree and in such cases judgment debtor(s) who has/have acquired right and interest of some of the decree holders must first yield up their possession and then sue for partition or such other reliefs as the case may be.
28. So far as the decisions relied on by the learned counsel for petitioners - Kunjan Govindan v. Bhagavathi Lekshmi and Joseph v. Sukumara Panicker (supra) are concerned those decisions took the view that in such a situation only portion of the property remaining with the decree holder could be redeemed. Those decisions cannot apply to the facts of the present case. Kunjan Govindan v. Bhagavathi Lekshmi was a case where defendant-mortgagee had purchased a definite share in the right of the co-mortgagor. In Joseph v. Sukumara Panicker there was a partition among the members of the tarwad and it is thereafter that the suit for redemption was filed in which case there could be breaking up of integrity of the mortgage to the extent of share of mortgagee acquiring equity of redemption is concerned. The decisions in Govindan v. Bhaskaran, M.P.Ahmed v. Kuthiravattam Estate Receiver and Achaldas Durgaji Oswal v. Ramvilas Gangobisan Heda are relied on by learned counsel for petitioners to contend that the decree only declared right of the mortgagor to redeem under Sec.60 of the Act and that is the deposit of mortgage money which snaps the mortgagor-mortgagee relationship. In other words until deposit of the mortgage money, the mortgagor- mortgagee relationship continues. I think, there could be no dispute about that proposition stated by the learned counsel and upheld in the decisions referred to. But that did not mean that if a fractional interest of a co-mortgagor is acquired by any or all of the mortgagees after filing of the suit be it before deposit of the mortgage money that would result in breaking integrity of the mortgage defeating the right of the co-mortgagor who has not assigned his interest to the mortgagee to execute the decree. Decisions relied on by the learned counsel for petitioners are not authorities for such a proposition.
29. Another decision relied on by learned counsel is Jagdish Dutt v. Dharam Pal (supra). That case related to lessor-lessee relationship and fusion of interest of lessor and lessee making the decree for recovery of possession from the lessee inexecutable. That was a case of joint decree for recovery of possession from the lessee in favour of the joint family. The effect of a transfer by a co-parcener of his interest in the suit property to the judgment debtor was considered. It was held that only the remaining part of the decree may then be executed. In paragraph 7 it was held that when a decree is passed in favour of a joint family the same has to be taken as a decree in favour of all the members of the family in which event it becomes a joint decree. Where a joint decree for actual possession of immovable property is passed and one of the co-parceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the decree. It was also held that in a case where interest of the co-parceners is undefined, indeterminate and cannot specifically be stated to be in respect of any one portion of the property the decree could not be given effect to before ascertaining rights of the parties by an appropriate decree in a partition suit. It is contended by learned counsel that in the light of the above decision respondent No.1 has to sue for partition and separate possession of his share and redeem that part from petitioners who have acquired equity of redemption from some of the co-mortgagors.
30. In Pramod Kumar Jaiswal v.Bibi Husn Bano ([2005] 5 SCC 492) a Larger Bench of the Supreme Court considered effect of merger of interest of lessor-lessee. There it was held that on a tenant taking assignment from only some of the co-owners, interest of the lessor and lessee in the whole of the property does not become vested in one person. In that case appellants-tenants having acquired only the right from some of the co-owners/landlords, it was held they they could not claim that tenancy has been determined by merger under Sec.111 (d) of the Act. It is relevant to note paragraph 9 of that judgment. The Supreme Court (Larger Bench) was not agreeable with the view taken by a Bench of two Judges in Jagdish Dutt v. Dharam Pal (supra). Referring to the said decision, in paragraph 9 it is said.
"Their Lordships proceeded to say that they had to find out the effect of the purchase of divided interest of some of the co-parceners in the family of the decree holder in respect of the property that was the subject matter of execution. In view of the fact that, that was not a case dealing with merger under Sec. 111 of the Transfer of Property Act, we do not think it necessary to consider the correctness or otherwise of the above decision, though there may be merit in the submission on behalf of the respondents that the said decision cannot be said to lay down the correct law, even in respect of the effect of acquisition of co-ownership rights by a person, claiming to construct the execution of a decree for eviction especially since that was also a claim of right by a judgment debtor who had been directed to be evicted by decree."
31. Learned counsel, Shri G.S. Reghunath contended that the said observations concerning correctness of the decision in Jagdish Dutt v. Dharam Pal is not binding on this Court. Learned counsel referred to various authorities to contend that every observation made by the Supreme Court is not binding, observation quoted above was not necessary for the decision of the case and hence it is not binding on this Court, it is contended.
32. Assuming so, it is to be noted that the Larger Bench in Pramod Kumar Jaiswal v. Bibi Husn Bano (supra) approved the decision in T.Lakshmipathi v. P.Nithayananda Reddy ([2003] 5 SCC 150). In that case referring to the doctrine of merger in the light of Sec.111(d) of the Act it was held that the common law doctrine of merger is statutorily embodied in Sec.111(d) of the Act and that the provision contemplates: (1) Coalescence of the interest of the lessee and interest of lessor; (2) in the whole of the property (3) at the same time (4) in one person; and (5), in the same right. There must be complete union of all the interest of lessor and lessee to enable the lesser interest of the lessee sink into the larger interest of lessor. Merger is largely a question of intention dependant on circumstances and courts will presume when it operates to the disadvantage of the party. It was also held in T.Lakshmipathi v. P.Nithyananda Reddy (supra) that interest of respondent No.1 whatever be its extent (as in the present case) had not come to vest in the appellants. Appellants in that case also acquired tenancy right in the property but they have acquired only partial ownership. It was held that they are liable to be evicted by respondent No.1, whatever be the extent of right respondent No.1 had as a landlord of the property. Assuming that the observations in Pramod Kumar Jaiswal v. Bibi Husn Bano (supra) so far as correctness of the decision in Jagdish Dutt v. Dharam Pal (supra) is not binding on this Court as learned counsel for petitioners contend, this Court is bound by the decision of the Larger Bench in Pramod Kumar Jaiswal v. Bibi Husn Bano (supra) approving the decision in T.Lakshmipathi v. Nithyananda Reddy (supra) which eloquently states that when merger is only of a part of right of landlords the lessee cannot resist a decree for eviction at the hands of decree holder-landlord seeking eviction whatever lesser extent of ownership right such decree holder has in the property.
33. Learned counsel for petitioners also referred to me the decision of this Court in S.A. No.844 of 1979 discussed by the Division Bench in paragraph 8 of the decision in Sreekumaran Nair v. Velayudhan Nair (supra). I have gone through the observations of the learned Judge in S.A. No.844 of 1979 and to my mind, it does not say that even when all or some of the mortgagees have acquired only a fractional interest in the equity of redemption the decree becomes inexecutable at the hands of the co-mortgagor who has not assigned his right to the mortgagees.
34. Though reliance was placed by learned counsel for petitioners on the decision in Madhavan Nair v. Ramankutty Menon (AIR 1994 Kerala 75), that decision cannot apply to the facts of the present cases. There, question considered was whether a mortgagee purchasing a portion of equity of redemption is entitled to the benefits of Sec.5 of the Kerala Land Reforms Act (as amended by Act 35 of 1969). On the other hand in Naurang Singh v. Jangir Singh (AIR 1985 Punjab and Haryana 268 - paragraph 4) it was held that right to redeem a mortgage is extinguishable only when mortgagor's right in its entirety is purchased by the co- mortgagee in respect of the hypotheca or any (specific) provison thereof. It was held that notwithstanding that one of the mortgagees had acquired the equity of redemption to the extent of one half of the mortgaged land integrity of the mortgage cannot be said to be broken by such purchase of equity of redemption and that co-mortgagor was entitled to redeem whole of the mortgaged land. In Bhavani Santhakumari v. Sahadevan Raveendran (2005 [3] KLJ 552) in paragraph 10 a learned Single Judge of this Court observed that "even in a case where the original mortgagee acquires a portion of the equity of redemption the mortgage is not extinguished completely. There can only be a pro tanto extinguishment of the mortgage right to the extent of mortgagee acquiring mortgagor's interest and so far as the other shares of equity of redemption is concerned the mortgage will subsist." It is idle for petitioners on the strength of their claim of a fractional, undivided interest (whatever be its extent) from some of the members of the tarwad to contend that their purchase (after suit), be it before deposit of the mortgage money has resulted in breakage of integrity of the mortgage as a whole and hence respondent No.1 is not entitled to get physical delivery of possession of the mortgaged property. If that view is adopted, as this Court pointed out in Narayani Amma v. Govindan Nambi (supra) it would work out injustice to the decree holder who has not assigned his share in the property to the judgment debtors and it is also illogical to think that the non-assigning decree holder loses his right under which decree to redeem the entire mortgage. In Mora Joshi v. Ramachandra Dinkar Joshi ([1891] 15 ILR [Bombay] 24) it was held that one of the several joint mortgagors is entitled to redeem the whole mortgage before partition though mortgagee has a share in the equity of redemption. The owners of a share in the equity of redemption need not obtain partition before suing for redemption. He is entitled to redeem the whole mortgage and the fact that the mortgagee has himself purchased a portion of the equity of redemption does not defeat that right. Rather it is reasonable to think, also in the light of the authorities referred to above that in such situation the mortgagee who purchased equity of redemption from some of the co-mortgagors has to first yield up possession to the remaining decree holder(s) and then sue for partition of property on payment of his share in the mortgage money or other sum due to the redeeming mortgagor. In these cases respondent No.1 being an assignee from the legal representatives of one of the decree holders who was a junior member of the tarwad, spending money from his own pocket for payment of the mortgage money and value of improvements is entitled to get possession and remain in such possession until the right claimed by the petitioners (in the revisions) is determined in a suit for partition and separate possession of the share claimed by them.
35. Next question for decision is regarding the application of lis pendense. All the assignments in favour of petitioners (in the revisions) were made pending suit and even after the decree for redemption. Assignments made by the petitioner in C.R.P. No.404 of 2010 in favour of petitioners in the other revision petitions were after this Court disposed of C.R.P. No.756 of 2008 on March 26, 2010. No doubt, the principle of lis pendense does not invalidate the assignments in favour of petitioners but it makes those assignments subject to the result of the suit. The decree permitted the decree holders to redeem the mortgage on deposit of the mortgage money and value of improvements. The fractional interest claimed to be acquired by petitioners in the tarwad property must be subject to the decree. I do not forget that in Khelat Chandra v. Peary Lal (supra) on which heavy reliance is placed by petitioners assignment was subsequent to the decree. But there, principle of Sec.52 of the Act was not considered. Principle of lis pendense is embodied in Sec.52 of the Act as a matter of public policy. Turner, L.J., stated in Bellamy v. Sabine ([1857] 1 De G & J 566):
"It is, as I think, a doctrine common to the courts both of Law and Equity, and rests, as I apprehend, upon this foundation - that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before judgment or decree, and would be driver to commence his proceedings denovo, subject again to be defeated by the same course of proceeding."
Lord Cranworth in the same case observed:
"The law does not allow litigant parties to give others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party."
In Naro Hari Bhave v. Vithal Bhat (1886 [10] ILR Bombay 648) it was held,
"In the case of joint family property, which, though held in certain shares by several co- parceners, is mortgaged as a whole and redeemable upon payment of the entire sum, each and every one of the mortgagors has a right to redeem the whole estate, seeking his contribution from the rest and that right cannot be affected by the conduct of the defendants post litem motam either by purchase of a share in the equity of redemption pending suit or by partial redemption allowed by them." Birdwood, J observed thus:
"As the plaintiffs were clearly entitled, at the time when the suit was instituted, to redeem the whole, that right ought not to be affected by the conduct of the defendant post litem motam .. whether if the defendant has purchased a share in the equity of redemption before the institution of the suit, we would have followed the Madras ruling, it is of course, unnecessary for us to say. But as, when sued, the defendants enjoyed the property only in their character as mortgagees, they were clearly not entitled to resist the plaintiffs' claim, and by, thereafter, purchasing a share in the equity of redemption, they cannot force the plaintiffs to a proper suit for partition."
In Kannu Pillai v. Govindan (supra) it was held that acquisition of mortgage right cannot make the suit not maintainable if it was maintainable when it was instituted, as otherwise it would be in the power of a mortgagee to resist redemption subsequent to the suit acquiring title to the suit to a fraction of equity of redemption. Amruthappa v. Abul Rasool (AIR 1988 Andhra Pradesh 215) also adopted the same view and held that when in a suit for redemption of mortgage property the mortgagee purchases a share of the hypotheca after suit, the mortgagee has to first surrender possession of the entire property and then sue for his share. Question raised in that case (see paragraph 39) was whether after purchase of half share in the hypotheca by the (usufructuary) mortgagee from the heirs of one of the co-mortgagors a non-alienating co-mortgagor could not redeem and get possession of the entire mortgage property but has to redeem only his share of the mortgage in view of the last clause of Sec.60 of the Act as integrity of the mortgage was (claimed to be) broken due to the mortgagee acquiring half share of the hypotheca from the heirs of one of the mortgagors. In paragraph 42 it was held that principle of lis pendense applied first and the mortgagee has to give up his possession qua mortgage to the redeeming co-mortgagor and has then to sue for partition and separate possession (of his share). He cannot drive the non-alienating co-mortgagor who has filed the suit for redemption to a fresh suit for partition and separate possession. I am in respectful agreement with the view taken in the above decisions. Petitioners who claimed to have acquired fractional interest in the property of tarwad from the legal heirs of one of the co-mortgagors cannot justifiably resist execution even by an assignee from the legal heirs of the non-alienating co-mortgagor, they cannot resist physical delivery of possession and justifiably ask respondent No.1 to sue for partition and separate possession of share. Instead, they have to yield up possession to respondent No.1 and then work out their remedies if any in a suit for partition or other reliefs as law provides on payment of their share of mortgage money and other amounts as are due to respondent No.1. Executing court was not correct in allowing E.A. No.693 of 2010 in part to the extent that respondent No.1 was denied physical delivery of 74 cents from out of the decree schedule property. The above discussion leads me to the conclusion that revision petitions are liable to be dismissed while Writ Petition is to be allowed.
Resultantly,
(i) Civil Revision Petition Nos.404, 466, 468 and 478 of 2010 are dismissed.
(ii) W.P(C) No.28525 of 2010 is allowed and the order of the executing court in E.A.No.693 of 2010 that 74 cents acquired by Binu Krishan as per document Nos.989 and 990 of 1998 is to be excluded from redemption is set aside. E.A. No.693 of 2010 will stand dismissed in the whole.
Interlocutor Application No.1934 of 2010, 2195 of 2010 and 2234 of 2010 in C.R.P. Nos.404 of 2010, C.R.P. No.2195 of 2010 and C.R.P. No.478 of 2010, respectively shall stand dismissed.