Shri Gowramma and Anr. vs Shri Kalingappa (D) represented by LRs & Ors.

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]

Shri Gowramma and Anr. .. Appellants

Versus

Shri Kalingappa (D) represented by LRs & Ors. .. Respondents

JUDGMENT

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 2

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 3

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 4

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 5

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 6

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.

7

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 8

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 9

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 10

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.