Full Judgment Text
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NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1574 OF 2019
[Arising out of SLP (C) No. 17510 of 2014]
Smt. Gowramma and Anr. .. Appellants
Versus
Shri Kalingappa (D) represented by LRs & Ors. .. Respondents
J U D G M E N T
M. R. SHAH, J.
Leave granted.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 1.7.2011 passed by the High Court
Karnataka in RSA No. 2092 of 2008, by which the High Court
has allowed the said appeal and has quashed and set aside the
judgment and decree passed by the Court of Principal Civil Judge
(Jr. Division), Nanjangud (hereinafter referred to as the ‘trial
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Court’), confirmed by the first Appellate Court and consequently
has dismissed the suit, the original Plaintiffs have preferred the
present appeal.
2. The facts leading to the present appeal in nutshell are as
under:
That the Appellants herein – original Plaintiffs mortgaged the
land in question in favour of one Bangarasetty for a period of five
years for Rs.3,000/ and he was put in possession. That the
mortgage was done on 3.10.1980. That thereafter, the original
Plaintiffs entered into an Agreement to Sell dated 26.4.1982 to
sell the same in favour of the Respondent’s father – Kalingappa
for a sum of Rs.6,000/. That, Kalingappa filed a civil suit being
OS No. 48 of 1983 for specific performance of the agreement to
sell dated 26.4.1982. It appears that, in between, Bangarasetty –
Mortgagee assigned the mortgage in favour of one Shri N.S.
Sundarasetty and he was put in possession of the land. That the
learned Court of Munsiff and Additional JMFC, Nanjangud by
judgment and decree dated 3.8.1984 decreed the suit for specific
performance filed by the aforesaid Kalingappa. Learned Court of
Munsiff and Additional JMFC directed the Appellants herein to
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execute the sale deed by receiving Rs.1,000/. Learned Court of
Munsiff and Additional JMFC also directed the mortgagee to
return the mortgage deed by receiving the mortgage amount and
handover the land within one month. It appears that thereafter
Kalingappa filed an Execution Petition No. 64 of 1996 for
execution of the judgment and decree dated 3.8.1984 passed by
the learned Court of Munsiff and Additional JMFC. The said
Execution Petition was dismissed as not pressed by an order
dated 28.6.1997. However, Kalingappa paid Rs.3,000/ being the
mortgage amount to one Sundarasetty (the mortgagee assignee)
and Kalingappa was put in possession of the land in question.
2.1 That thereafter, in the year 2002, the Appellants herein –
original Plaintiffs filed suit bearing OS No. 45 of 2002 in the
Court of Principal Civil Judge (Jr. Division), Nanjangud
(hereinafter referred to as the ‘trial Court’] for redemption of the
mortgage, possession and mesne profits against the original
mortgagee as well as against Kalingappa. Before that Court, it
was specifically stated in the written statement filed by
Kalingappa that he had taken over the property by redeeming the
mortgage in terms of the earlier decree dated 3.8.1984. That by
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judgment and order dated 18.3.2004, the learned trial Court
partly decreed the suit for redemption of the mortgage filed by the
Appellants herein – original Plaintiffs. The learned trial Court
also directed the original Defendant No. 1 – Kalingappa to
handover the possession of the suit schedule property in favour
of the plaintiffs (Appellants herein) on receiving the mortgage
amount of Rs.3,000/ within one month from the date of its
deposit by the plaintiffs.
2.2 The judgment and order passed by the learned trial Court
dated 18.3.2004 in OS No. 45 of 2002 came to be confirmed by
the Court of the Civil Judge (Sr. Division), Nanjangud (hereinafter
referred to as the ‘first Appellate Court’) vide judgment and order
dated 15.7.2008 passed in R.A. No. 45 of 2004.
2.3 Feeling aggrieved and dissatisfied with the judgment and
order passed by the first Appellate Court dated 15.7.2008 passed
in RA No. 45 of 2004, Respondent No. 1 herein – Kalingappa
through his legal heirs preferred RSA No. 2092 of 2008 before the
High Court of Karnataka at Bangalore. That, relying upon and
considering Section 60 of the Transfer of Property Act, 1882
(hereinafter referred to as the ‘TP Act’), the High Court by the
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impugned judgment and order has allowed the said appeal and
quashed and set aside the judgment and decree passed by the
learned trial Court, confirmed by the first Appellate Court and
consequently has dismissed the suit being OS No. 45 of 2002.
2.4 Feeling aggrieved and dissatisfied with the judgment and
order passed by the High Court, the original plaintiffs in OS No.
45 of 2002 have preferred the present appeal.
3. Learned counsel appearing on behalf of the Appellants has
vehemently submitted that, in the facts and circumstances of the
case, the High Court has committed an error in holding that the
mortgage was extinguished.
3.1 It is vehemently submitted by the learned counsel appearing
on behalf of the Appellants that, as provided under Section 60 of
the TP Act, till Shera (endorsement) is written on the mortgage
deed or an acknowledgement in writing that the mortgage has
been extinguished and got registered, there is no redemption in
the mortgage in the eyes of law. It is submitted that in the
present case such is not the case and, therefore, both the Courts
below rightly decreed the suit for redemption of the mortgage. It
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is submitted that, therefore, the High Court committed a grave
error in setting aside the concurrent findings of both the Courts
below.
3.2 It is further submitted by the learned counsel appearing on
behalf of the Appellants that, as such, in the present case,
though there was a decree in favour of Kalingappa in O.S. No. 48
of 1983 for specific performance of the agreement to sale dated
26.4.1982, however, thereafter, he did not execute the decree
and, in fact, the Execution Petition was dismissed as not pressed
and, therefore, the right of Kalingappa under the decree passed
in O.S. No. 48 of 1983 was extinguished and, therefore, the right
of the mortgagor to redeem the mortgage was saved/survived. It
is submitted that, therefore, the plaintiffs – legal heirs of the
mortgagor were entitled to redeem the mortgage and, therefore,
they rightly filed the suit for redemption of the mortgage.
3.3 Making the above submissions, it is prayed to allow the
present Appeal.
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4. Learned counsel appearing on behalf of Respondent Nos. 1
to 4 – legal heirs of deceased Kalingappa has supported the
impugned judgment and order passed by the High Court.
4.1 It is vehemently submitted by the learned counsel appearing
on behalf of original Defendant No. 1 (since dead and now
represented through his legal heirs) that considering Proviso to
Section 60 of the TP Act and considering the fact that Kalingappa
paid the mortgage amount of Rs.3,000/ to Sundarasetty –
mortgagee assignee and Kalingappa was put in possession, the
High Court has rightly observed and held that the mortgage was
extinguished by the act of the parties. It is submitted that,
therefore, the High Court has rightly dismissed the suit for
redemption of the mortgage. Therefore, it is prayed to dismiss
the present appeal.
5. Heard the learned counsel appearing on behalf of the
respective parties at length.
5.1 At the outset, it is required to be noted that Sundarasetty
was assigned the mortgage by the original mortgagee –
Bangarasetty and, in fact, he was also put in possession of the
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land in question. It is true that Kalingappa – the mortgagee
earlier filed a suit for specific performance and there was a decree
in favour of Kalingappa – original Plaintiff in OS No. 48 of 1983.
However, the Execution Petition filed by Kalingappa was
dismissed as not pressed and, therefore, his rights under the
judgment and decree passed in OS No. 48 of 1983 for specific
performance of the agreement to sell dated 26.4.1982 was
extinguished. Therefore, thereafter the question was only with
respect to the mortgage. As observed hereinabove, in the year
1982, the original Mortgagee – Bangarasetty assigned the
mortgage in favour of Sundarasetty and, therefore, Sundarasetty
became the mortgagee assignee and, in fact, he was also put in
possession of the suit land. It is required to be noted that the
decree passed by the learned Court of Munsiff and Additional
JMFC in OS No. 48 of 1983 was in two parts. The first part was
for specific performance of the agreement to sell in favour of
Kalingappa. The second part was in favour of the
mortgagee/mortgagee assignee and the mortgagee/mortgagee
assignee were directed to receive the mortgage amount and to
return the mortgage deed with the Shera (endorsement) and to
handover the suit property to the plaintiff – Kalingappa. It
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appears that, pursuant to the second part of the judgment and
decree passed in OS No. 48 of 1983, Kalingappa paid Rs.3,000/
being the mortgage amount to Sundarasetty – mortgagee
assignee and in turn Kalingappa was put in possession thereof.
In view of the factual situation and considering the Proviso to
Section 60 of the TP Act, the High Court has rightly observed and
held that by the act of the parties , namely, by act of
Sundarasetty receiving Rs.3,000/ being the mortgage amount
from Kalingappa and putting him in possession, the mortgage is
extinguished. The submission on behalf of the Appellants –
original Plaintiffs that the mortgage can be said to have been
extinguished only in a case where there is a Shera (endorsement)
written on the mortgage deed or an acknowledgment in writing
that the mortgage is extinguished and got registered, there is no
redemption in the mortgage in the eyes of law is concerned, the
aforesaid has no substance, considering Proviso to Section 60 of
the TP Act. Considering Section 60 of the TP Act, mortgagor has
a right to redeem the mortgage as provided under first part of
Section 60 of the TP Act, however, provided the right conferred in
favour of mortgagor has not been extinguished by act of the
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parties or by decree of the Court, as per Proviso to Section 60 of
the TP Act. In the present case, by act of the parties, i.e. on
Sundarasetty – mortgagee assignee receiving Rs.3,000/ being
the mortgage amount from Kalingappa and by putting him in
possession, as rightly observed by the High Court, the mortgage
is extinguished and, therefore, the suit for redemption of the
mortgage preferred by the Appellants herein – original plaintiffs
was not maintainable. No error has been committed by the High
Court in dismissing the suit for redemption of the mortgage
preferred by the Appellants hereinoriginal plaintiffs. We are in
complete agreement with the view taken by the High Court.
5.2 In view of the above and the reasons stated above, the
present Appeal fails and the same deserves to be dismissed and
is accordingly dismissed. However, without costs.
……………………………………J.
(L. NAGESWARA RAO)
……………………………………J.
(M. R SHAH)
New Delhi;
February 08, 2019.