REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5476 OF 2008 (Arising out of SLP (C) No. 17663 of 2006)

K. VILASINI & ORS.       … APPELLANTS

Versus

EDWIN PERIERA & ORS.              … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 6.3.2006

passed by the High Court of Kerala in Writ Petition (C) No. 33208 of 2005

and I.A. No. 3350 of 2006 in Writ Petition No. 12156 of 2005.   

Defendant – judgment debtor is the appellant before us.  

The properties in suit belonged to one Francis Periera (Periera), the

predecessor-in-interest of the respondent.  A deed of usufructuary mortgage

was executed by him in favour of one Kumaran Kesevan, the predecessor-

in-interest of the appellants.  Periera is said to have executed a will in terms

whereof the equity of redemption in respect of the said mortgage ultimately

devolved on some of his children.  A suit was filed for redemption of the

said mortgage by his successors.  A preliminary decree was passed therein.

Final decree was passed on 11.7.1997 directing the respondents herein to

deposit a sum of Rs.41,33,508.70 within a period of six months purported to

be  as  a  part  of  the  redemption  being  the  value  of  the  substantial

improvements  effected  by  the  mortgagees  in  the  said  properties.

Indisputably,  the  said  amount  was  not  deposited.    An  application  for

extension of time being I.A. No. 247 of 1998 was filed by the respondents

on 6.1.1998, which was allowed in terms whereof the time for deposit of the

amount  was  extended  upto  11.7.1998.   However,  on  10.7.1998,  another

application  for  extension  for  a  period  of  six  months  was  filed.   It  was

marked as I.A. No. 5800 of 1998, but the same was dismissed. The earlier

Application being I.A. No.247 of 1998 also came to be dismissed ultimately

by an  order  dated  13.7.1998  for  default.   An  application  for  restoration

thereof  was  filed  on  1.9.1999.   By  an  order  dated  8.2.2001,  the  said

application for restoration was allowed and the time to deposit the amount

was extended till 16.2.2001.   

On 22.2.2005, the 19th plaintiff, respondent No. 1 herein, being son of

the deceased 4th plaintiff filed an application marked as I.A. No. 2253 of

2005  praying  for  condoning  the  delay  in  making  the  deposit  and  for

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issuance of challan for depositing the amount stating that he was not aware

that  the  said  amount  has  to  be  deposited  and  he  could  come  to  know

thereabout  only  when  he  received  the  certified  copy  of  the  decree  on

20.10.2004.   

3. The II Additional Munsiff by his order dated 31.3.2005 allowed the

said  I.A  upon  condoning  the  delay  on  payment  of  cost  of  Rs.1000/-

directing:

“But  the  petitioner  filed  affidavit  stating  that  he came  to  know  about  the  amount  only  on 20.10.2004.   The  petitioner  could  have filed  the affidavit  by  stating  the  dismissal  of  the  earlier applications filed for extending the time for paying the  amount.  The  petitioner  has  no  complaint against his counsel.  Considering the huge amount to be paid by the petitioner I hold that the delay can be condoned subject to condition to pay cost of  Rs.1000/-  to  the  contesting  second  counter petitioner for the ends of justice.  In  the  result  I.A.  is  allowed  and  the  delay  is condoned on payment of cost of Rs.1000/- to the second  counter  petitioner.   The  challan  shall  be issued to the petitioner for remitting the amount as per final decree.  The petitioner shall deposit the said amount on or before 7.4.2005 otherwise the petition will be stand dismissed.”

Indisputably, the said order was not complied with.  Respondent No.

1 filed another application being I.A. No. 4106 of 2005 for further extension

of time, which was rejected on 8.4.2005.   

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Aggrieved thereby and dissatisfied therewith, a Writ Petition which

was marked as Writ Petition (C) No. 12156 of 2005 was filed.  By reason of

a judgment and order dated 20.5.2005, the said Writ Petition was allowed

without any notice to the respondents therein, directing:  

“2. Considering the facts of this case, I find that it  is  not  necessary  to  issue  notice  to  all  the  12 Respondents.   Hence, notice is waived.  3. Taking  into  account  the  various  facts brought to my notice and also the quantum of the value  of  improvements  to  be  deposited  by  the Petitioner,  I  extend the  time granted  by the trial Court  under  Ext.  P2  by  one  month.   Petitioner shall  deposit  the  amount  stated  in  Ext.  P2 order accordingly.

This Writ Petition is disposed of as above.”

Indisputably,  the  value  of  improvements  was  deposited  by  the

respondent No. 1 in the trial court on 18.6.2005.   

Appellants filed a Writ Petition being Writ Petition (C) No. 33208 of

2005  challenging  the  order  of  the  II  Additional  Munsiff  passed  on

31.3.2005.  An application for recall of the order dated 20.5.2005 passed in

Writ Petition (C) No. 12156 of 2005 granting one month’s time to deposit

the value of the  improvements  was also filed.   The said application was

marked as I.A. No. 3350 of 2006 in Writ Petition (C) No. 12156 of 2005.

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By reason  of  the  impugned  judgment,  the  said  Writ  Petition  as  also  the

interlocutory application filed by the appellants was dismissed directing to

revalue the improvements effected by them on the suit property purported to

be  in  terms  of  the  provisions  of  the  Kerala  Compensation  for  Tenants

Improvements Act, 1959.   

4. Second appellant thereafter filed an application for determination of

the value of improvements to the suit  property effected by the appellants

after passing of the final decree.  

Before proceeding further, we may notice that although in the body of

the memorandum of appeal the order dated 6.3.2006 passed in both Writ

Petition (C) No. 33208 of 2005 and I.A. No. 3350 of 2006 in Writ Petition

(C) No. 12156 of 2005 had been mentioned, but the main prayer reads as

under:

“It  is,  therefore,  most  respectfully  prayed  that Your  Lordships  may  graciously  be  pleased  to grant the Petitioner Special Leave Petition against the judgment  dated 6.3.2006 passed by the High Court of Kerala in Writ Petition (C) No. 33208 of 2005  and  pass  any  other  order  or  orders  which may be deemed fit and proper to meet the ends of justice.”

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Thus the appellants have questioned only the order of the High Court

passed in Writ Petition (C) No. 33208 of 2005.   

The deposit of the amount by the appellant had been made in terms of

the order passed in I.A. No. 2253 of 2005, which is not under challenge.  

Notice  in  this  appeal  was  directed  to  be  issued  on  10.11.2006

whereby liberty was granted to the appellants to mention after the service

was complete.  There is nothing on record to show as to whether the interim

relief  was  pressed  for  or  not.   The  execution  application,  however,

proceeded  in  the  court  of  Additional  Munsiff.  A  Commissioner  was

appointed  for  determining  the  value  of  improvements  made  to  the  suit

property after  passing of  the final  decree.  Respondents  were directed to

deposit a sum of Rs.5,38,269.50.  The said order has been complied with by

the respondents whereafter they were put in possession of the suit properties

through process of the Court on 23.2.2007.   

5. Mr. Subramonium Prasad, learned counsel appearing on behalf of the

petitioner in support of this appeal would urge:

i. The extension of time had wrongly been granted by the courts

below on so many occasions.

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ii. Even the peremptory time granted by the trial court having not

been complied with, the respondents’ application should have

been dismissed by reason whereof; they must be held to have

lost their right of redemption; the logical consequence whereof

would be that the mortgage did not subsist.

6. Mr.  Nageshwar Rao and Mr. P. B. Suresh Kumar, learned counsel

appearing on behalf of the respondents, on the other hand, pointed out that

the appellants have not filed any application for foreclosure of mortgage.

Drawing our attention to the Kerala Amendment of Order XXXIV Rule 5 of

the Code of Civil  Procedure,  the learned counsel  would contend that  the

same provides for a power in the court to postpone the date of payment.  In

any event,  it  was urged that  in view of the subsequent  events  appellants

have waived their right of foreclosure of mortgage, if any.   

7. A right of foreclosure is to be exercised in terms of Order XXXIV

Rule  8(3)  of  the  Code  wherefor  no  decree  was  passed.   The  suit  for

redemption was decreed. Rule 5 of Order XXXIV as amended by the State

of Kerala reads as under:

“5.  Date of payment.—The Court may, upon good cause  shown  and  upon  such  terms,  if  any,  as  it

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thinks fit, postpone the date fixed for payment under this Order from time to time.”

It is this power which the learned trial judge has been exercising from

time to time.  We have noticed hereinbefore that though a peremptory time

was granted, the High Court in terms of its order dated 20.5.2005 passed in

Writ Petition (C) No. 12156 of 2005 granted respondent No. 1 herein one

month’s further time to deposit the value of improvements. The said order

was complied with.   

Although  the  said  order  was  ex  parte  in  nature,  appellants  should

have questioned the correctness thereof.  Instead, he filed an interlocutory

application.  The same was also dismissed.  The order passed in the said

interlocutory  application  for  recalling  of  the  order  dated  20.5.2005,  as

noticed hereinbefore, is also not the subject matter of this appeal.     The

challenge in this appeal is confined only to the order dated 6.3.2006 passed

in Writ Petition (C) No. 33208 of 2005.  

8. Mr.  Subramonium Prasad  submitted  that  by mistake no  prayer has

been made for setting aside the order, but even in the substantial questions

of law formulated no ground had been taken that the ex parte order passed

in favour of the respondent No. 1 herein was illegal.  

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Even if we had not taken note of the aforementioned technicality, the

subsequent  events,  in  our  opinion,  categorically show that  the  appellants

herein in view of their conduct are estopped and precluded from questioning

the correctness of the order dated 6.3.2006 passed in Writ Petition (C) No.

33208 of  2005.  We would, however,  advert  to the said question a little

later.   

9. We may at this stage notice that an order permitting foreclosure in

terms of Order XXXIV Rule 8(3) can be passed only upon ascertaining the

nature of the mortgage and the rights of the parties thereunder.  The deed of

mortgage  has  not  been  filed  before  this  Court.   No  foundational  fact,

therefore, had been laid by the appellants so as to enable the trial court to

pass a decree for foreclosure.  No step was also taken for enforcement of the

said purported right.   

10. This  Court  in  Achaldas  Durgaji  Oswal  (Dead)  through  LRs.  v.

Ramvilas  Gangabisan Heda (Dead) through LRs.  & ors.   [(2003)  3 SCC

614] stated the law, thus:

“22. The right of redemption of a mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or

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by act of parties. Admittedly, in the instant case, no decree has been passed extinguishing the right of the mortgagor nor has such right come to an end by act of the parties.”

We may also notice that in  Mhadagonda Ramgonda Patil  & ors.  v.

Shripal  Balwant  Rainade & ors. [(1988)  3  SCC 298],  this  Court  held as

under:  

“12.  It  is  thus  manifestly  clear  that  the  right  of redemption will be extinguished (1) by the act of the parties  or (2) by the decree of a Court.  We are not concerned with the question of extinguishment of the right  of  redemption  by  the  act  of  the  parties.  The question is whether by the preliminary decree or final decree  passed  in  the  earlier  suit,  the  right  of  the respondents  to  redeem  the  mortgages  has  been extinguished.  The  decree  that  is  referred  to  in  the proviso to Section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure, as provided in Sub-rule (2) of Rule 3 of Order XXXIV and a final decree  in  a  redemption  suit  as  provided  in  Order XXXIV,  Rule  8(3)(a)  of  the  CPC.  Sub-rule  (2)  of Rule  3,  inter  alia,  provides  that  where  payment  in accordance with Sub-rule (1) has not been made, the court shall, on an application made by the plaintiff in this  behalf,  pass  a  final  decree  declaring  that  the defendant and all persons claiming through or under him  are  debarred  from  all  right  to  redeem  the mortgaged property and also,  if  necessary,  ordering the defendant to put the plaintiff in possession of the property.  Thus,  in  a  final  decree  in  a  suit  for foreclosure, on the failure of the defendant to pay all amounts  due,  the  extinguishment  of  the  right  of redemption has to be specifically declared. Again, in a final decree in a suit for redemption of mortgage by conditional  sale  or  for  redemption of  an anomalous mortgage,  the  extinguishment  of  the  right  of

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redemption  has  to  be  specifically  declared,  as provided in Clause (a) of Sub-rule (3) of Rule 8 of Order  XXXIV  of  the  CPC.  These  are  the  two circumstances-(1)  a  final  decree  in  a  suit  for foreclosure under Order XXXIV, Rule 3(2); and (2) a final  decree  in  a  suit  for  redemption  under  Order XXXIV, Rule 8(3)(a) of the CPC-when the right of redemption is extinguished.”

The  two  circumstances  in  which  the  right  of  redemption  is

extinguished  by passing  of  a  decree  are:  (i)  a  final  decree  in  a  suit  for

foreclosure under Order XXXIV Rule 3(2), CPC; and (ii) a final decree in a

suit for redemption under Order XXXIV Rule 8(3) thereof.  {See Philomina

Jose v. Federal Bank Ltd.   & ors.   [(2006) 2 SCC 608]}  

As the time for deposit of payment has been extended by the court

from time  to  time in  terms of  Rule  5  of  Order  XXXIV of  the  Code  as

amended by the State of Kerala, we do not think that the appellants can be

permitted to raise their  purported claim of right  of foreclosure before us.

Indisputably, the court has the power to extend the time.  Grant of extension

of time to deposit the amount, however, is not automatic.  The jurisdiction

has to be exercised judiciously.  However, the fact that the court has the

requisite  jurisdiction  to  extend  the  time  is  neither  denied  nor  disputed.

Once the court exercises its power to postpone the date fixed for deposit of

the  amount  due  under  the  mortgage,  the  same  could  have  been  subject

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matter of challenge, but as noticed hereinbefore, the appellants have failed

to do so.   

11. Coming now to the subsequent events, which we have noticed hereto-

before,  it  appears,  that  appellant  No.  1  herself  had  filed  an  application

before the court of Munsiff being E.P. No. 359 of 2005 in O.S. No. 885 of

1960 which is to the following effect:

“I am the 5th defendant in the above case.  I have constructed  a  Piggary  Farm  in  the  Schedule Property and the said farm is being run by my son Shri  Mohandas  who  has  taken  a  license  for  the same.   He  has  applied  for  the  license  in  the Panchayath  Office.   The  Piggary  farm  is constructed by me.  Since I cannot run it directly, I made  Mohandas  to  apply  for  the  licence.  I  am claiming  the  amount  deposited  for  the improvements  since  I  incurred  expenditure  for constructing the same.  I have the right  to claim for the same.  All the above stated facts are true.”

(emphasis supplied)

She, therefore, claimed the amount deposited by the respondents by

reason whereof she waived her right.  Apart from the same they proceeded

in  the  execution  case  despite  pendency  of  this  Appeal.   They  filed

applications for determination of the value of the improvements made by

them.  Only on their application, Commissioner was appointed; they filed

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objections thereto; the same had been considered and order was passed and

pursuant thereto the respondents deposited the amount.   

12. We have noticed hereinbefore that apart from other mortgagors who

are not the appellants, appellant No. 1 herself had filed an application for

withdrawal of the amount. Even possession has been delivered in favour of

the respondents.  The right to redeem a mortgage thus having been enforced,

in  our  opinion,  it  is  not  a  fit  case  where  the  impugned  order  should  be

interfered with.  It is now a well settled principle of law that even a legal

right can be waived.  It is also well settled that nobody can approbate and

reprobate at the same time.  [See  Deewan Singh and Ors. v.  Rajendra Pd.

Ardevi and Ors. (AIR 2007 SC 767)].

13. The principle of estoppel would also apply in a case of this nature.

Appellants could have filed an application for stay before us; they did not

seem  to  press  for  their  interim  relief  when  the  execution  case  was

proceeding.  They did not file any application for stay before this Court.

They even took part in the execution petition.  They did not state that they

were doing so without prejudice to their rights and their contentions.  No

prayer was made before the Executing Court that any order passed therein

should be subject to the result of this appeal.  At least after the amount was

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deposited, they could have approached this Court  and/or Executing Court

not to deliver possession of the property.  They chose not to do so.  

14. In  any  event,  as  indicated  hereinbefore  the  order  dated  31.3.2005

passed by the Additional  Munsiff  in  I.A. No. 2253 of  2005 was not  the

subject matter of challenge.  By the impugned judgment, a writ petition as

also the I.A. has been disposed of.  It was thus obligatory on the part of the

appellants to challenge the order passed in both the proceedings.  As the

amount of Rs. 41,33,508.70 had been deposited, appellants must be held to

have accepted the correctness of the said order dated 20.5.2005 disposing of

the Writ Petition (C) No. 12156 of 2005.

15. For the reasons aforementioned, we find no merit in this appeal which

is dismissed accordingly.  However, in the peculiar facts and circumstances

of the case, there shall be no order as to costs.

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Aftab Alam]

New Delhi; August 29, 2008

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