Case Note & Summary
The present appeal arises from a suit for redemption of mortgage filed by the appellant (plaintiff No.2) along with respondent No.2 (plaintiff No.1) against respondent No.1 (defendant No.1) in O.S.No.148/1988 before the trial Court. The suit sought redemption of mortgage of suit schedule properties, possession, and mesne profits. The trial Court decreed the suit on 19.12.2001. Aggrieved, respondent No.1/defendant preferred an appeal in R.A.No.24/2002 before the First Appellate Court, which allowed the appeal and set aside the trial Court's judgment on 29.10.2005. The appellant then filed this second appeal under Section 100 of CPC. The facts reveal that the suit properties were mortgaged by the plaintiffs' predecessor to the defendant's predecessor under a mortgage by conditional sale. The appellant contended that the mortgage was subsisting and that she was entitled to redeem. The respondent argued that the transaction was an outright sale and that the suit was barred by limitation. The High Court framed substantial questions of law regarding the right of redemption and limitation. The court held that the right of redemption continues until foreclosure or sale, and mere delay does not extinguish it. The suit was filed within 30 years from the date fixed for payment under Article 61(a) of the Limitation Act, 1963, and thus was not barred. The court also found that the evidence established a mortgage, not a sale. Consequently, the second appeal was allowed, the First Appellate Court's judgment was set aside, and the trial Court's decree was restored.
Headnote
A) Property Law - Mortgage - Redemption of Mortgage - Right of Redemption - Section 60 of Transfer of Property Act, 1882 - The court considered whether a mortgagor's right to redeem is extinguished by mere delay. Held that the right of redemption continues until the mortgage is foreclosed or the property is sold by decree of court. Mere delay does not extinguish the right unless there is a decree for foreclosure. (Paras 10-15) B) Limitation - Suit for Redemption - Article 61(a) of Limitation Act, 1963 - The court examined whether the suit for redemption was barred by limitation. Held that the period of limitation for a suit by a mortgagor to redeem or recover possession is 30 years from the date when the right to redeem accrues. In this case, the mortgage was by conditional sale with a fixed date for payment, and the suit was filed within 30 years from that date, hence not barred. (Paras 16-20) C) Evidence - Mortgage Transaction - Proof of Mortgage - The court analyzed the evidence regarding the mortgage transaction. Held that the mortgage deed and surrounding circumstances proved the mortgage, and the defendant's claim of sale was not substantiated. (Paras 21-25)
Issue of Consideration
Whether the appellant/plaintiff is entitled to redemption of mortgage despite the lapse of time and whether the suit is barred by limitation.
Final Decision
The second appeal is allowed. The judgment and decree dated 29.10.2005 passed by the First Appellate Court in R.A.No.24/2002 are set aside. The judgment and decree dated 19.12.2001 passed by the trial Court in O.S.No.148/1988 are restored. No order as to costs.
Law Points
- Right of redemption continues until foreclosure or sale
- mere delay does not extinguish right of redemption
- limitation for redemption suit is 30 years from date fixed for payment
- mortgage by conditional sale
- Section 60 of Transfer of Property Act
- 1882
- Article 61(a) of Limitation Act
- 1963
