Chinnathampi Nadar Chinnyyan Nadar and ors. Vs. Ponnamma Pillai Prasannakumari Amma and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. a. lekshmikutty, j.1. this appeal is filed against the judgment and decree in a. s. no. 183 of 2002 on the file of the sub-court. neyyattinkara which was preferred against the final judgment and decree in i.a. no. 3643 of 2000 in o. s. no. 91 of 1968 on the file of the munsiffs court, neyyattinkara. defendants 1, 3 and 8 are the appellants, herein. the suit is one for redemption of mortgage. the suit was originally dismissed by the trial court against which the plaintiffs filed a. s. no. 355 of 1,971 which was renumbered as a. s. no. 96 of 1974. the said appeal was allowed and the suit was decreed, against which the defendants filed appeal before this court as s. a. no. 792 of 1975. this court set aside the judgment and decree passed by the lower appellate court and remanded the case before the trial court. after remand, the trial court dismissed the suit against which the appellants filed a. s. no. 254 of 1978 before the lower appellate court. the lower appellate court confirmed the decree of the trial court. the plaintiffs filed s. a. no. 373 of 1981 against the said judgment. this court passed a preliminary decree against which the defendants filed civil appeal no. 11476 of 1995 before the supreme court. the supreme court confirmed the decree passed by this court. as per the preliminary decree, the plaintiffs were allowed to deposit the mortgage amount of rs. 449.13 and value of improvements rs. 150/-, including item nos. 2 and 3 building. the plaintiffs deposited rs. 1,500/- on 31-1-1994 and filed i. a. no. 3643 of 2000 for passing final decree. the trial court passed a final decree against which the defendant filed a. s. no. 183 of 2002 before the first appellate court. the first appellate court confirmed the judgment and decree of the trial court against which this r. s. a. is preferred.2. the only question formulated in this appeal is whether the judgment and decree of the courts below are perverse. the preliminary decree passed by this court was confirmed by the supreme court as per judgment in civil appeal no. 11476 of 1995. as per the preliminary decree, the plaintiffs were allowed to deposit the mortgage amount and value of improvements and the same was deposited on 31-1-1994. regarding deposit notice was issued to the defendants. the claim of the appellants/defendants is that they have effected valuable improvements in the property and that is to be assessed by issuing a commission. the trial court and the appellate court dismissed the commission application and final decree was passed. the first appellate court while disposing the appeal observed, that it is open to the appellants/defendants to raise their claim regarding the value of improvements, if it is so permissible under, law before the execution court. it is submitted by the learned counsel for the appellants that even though the appellants filed application before the execution court for assessing the value of improvements, the execution court dismissed the said application. the value of improvements has been assessed by the commissioner at the preliminary decree stage. in the commission application filed by the defendants, they have no case that they have effected any further improvements in the property. further, on deposit of the mortgage amount, the contractual relationship of mortgagor and mortgagee ceases. the mortgage money and value of improvements were deposited by the plaintiffs on 31-1-1994. when the mortgage money is deposited with notice there would not remain any debt from the mortgagor to the mortgagee and, therefore, the mortgage can no longer continue after the mortgage money is paid. thus on payment of the mortgage money or deposit before court by the mortgagor, the mortgage comes to an end and the right of the mortgagee to remain in possession also conterminous. thereafter, the mortgagee continues in unlawful possession. in such circumstances, the mortgagee is not entitled to get any improvements which has been effected after the deposit of the mortgage money and value of improvements. as stated earlier in the commission application, the defendants have no case that after the assessment of the value of improvements, they have effected any other improvements and there is substantial change in the improvement already assessed by the commissioner. on a consideration of the entire facts and evidence, i find that the judgment and decree of the court below are legal and not perverse as contended by the defendants.the r. s. a. is dismissed.