Case Note & Summary
The case involved appeals against a judgment of the Kerala High Court which dismissed Civil Revision petitions under Order 34 Rule 5 of the Code of Civil Procedure, 1908. The decrees for sale were passed on 8.2.1989 and 30.7.1985, and the High Court ruled that the right to redemption was extinguished by the decree. The appellants contended that the High Court's view was untenable, arguing that the Kerala amendment was non-est due to the Amendment Act of 1976. The court analyzed the provisions of the Code and the Transfer of Property Act, emphasizing that the right of redemption continues until a final decree specifically extinguishes it. The court referred to precedents, including Mhadagonda Ramgonda Patil v. Shripal Balwant Rainade, asserting that without a specific declaration in the final decree, the right of redemption remains intact. The court concluded that the High Court's judgment was indefensible, allowing the appeals and affirming the mortgagor's right to redeem the property until the confirmation of sale.
Headnote
A) Civil Procedure - Right of Redemption - Extinguishment of Right - Code of Civil Procedure, 1908, Order 34 Rule 5 - The court held that the right of redemption is not extinguished merely by the passing of a decree unless specifically declared in a final decree. The High Court's reliance on the merger of mortgage debt into decretal debt was found erroneous as the right of redemption remains until confirmation of sale (Paras 12-13).
Issue of Consideration
Whether the right of redemption under Order 34 Rule 5 of the Code of Civil Procedure was available to the mortgagor after the passing of the decree.
Final Decision
The Supreme Court set aside the High Court's judgment, allowing the appeals and affirming the mortgagor's right to redeem the property until the confirmation of sale.
Law Points
- Right of redemption
- mortgage
- final decree
- Code of Civil Procedure
- 1908
- Kerala amendment
- Transfer of Property Act
- 1882
