@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashHeard both the learned Counsel appearing for the Petitioner and the second Respondent. No appearance for the first Respondent.
2. Challenging the fair order and decretal order, dated 23.03.2007 made in E.A. No. 66 of 2007 in E.P. No. 77 of 2004 in O.S. No. 9 of 2001 on the file of the Subordinate Court, Dharamapuram, this Civil Revision has been preferred u/s 115 of the Code of Civil Procedure.
3. The Petitioner herein is the third party to the suit and the decree was obtained by the second Respondent herein. The suit in O.S. No. 9 of 2001 was filed by the second Respondent against the first Respondent, that was decreed against the first Respondent to pay a sum of Rs. 1,12,000/- with subsequent interest and costs and that the decree reached finality. Pursuant to the decree, the second Respondent herein filed E.P.R. No. 77 of 2004 before the Court below. The Execution Application in E.A. No. 66 of 2007 was filed by the Petitioner/third party on the ground that the first Respondent herein had obtained loan on 10.09.1997 by executing a promissory note for Rs. 80,000/-. According to him, in support of the loan obtained from the Petitioner herein, the first Respondent had executed an equitable mortgage deed, dated 15.09.1997. Therefore, the Petitioner has got charge over the property as first mortgagee and as there is charge over the property in favour of the Petitioner on the "A" schedule of property, the Petitioner herein sought an order preventing the second Respondent/decree-holder from bringing the property for sale to realise the amount due and payable, as per the decree obtained by the second Respondent in O.S. No. 9 of 2001 against the first Respondent.
4. Mr. N. Manokaran, learned Counsel appearing for the Petitioner submitted that though there was a promissory note, that was executed on 10.09.1997 by the first Respondent in favour of the revision Petitioner, subsequently, on 15.09.1997 he executed equitable mortgage deed in favour of the Petitioner and the same was marked as Ex.P.4 before the Court below. It being an equitable mortgage deed, need not be a registered document and the time limit is not three years but extended up to 12 years and therefore, the revision Petitioner has subsisting right over the property, being a mortgagee and the decree obtained by the second Respondent is subject to the claim of the revision Petitioner herein, hence, the Execution Application was filed before the Court below.
5. Per contra, Mr. B. Dyaneswaran, learned Counsel appearing for the second Respondent submitted that the claim made by the Petitioner herein in the year 2007, by way of filing E.A. No. 66 of 2007 is based on a time barred promissory note, hence, the plea of the Petitioner is not sustainable. Though equitable mortgage needs no compulsory registration, the bonafide of the document cannot be accepted in this case. The Petitioner is making claim, based on a promissory note, dated 10.09.1997, so far he has not filed any suit to get any decree against the first Respondent. Even based on the alleged equitable mortgage deed, said to have been created on 15.09.1997, no suit was filed and no decree was obtained till date and therefore, the claim made by the Petitioner/third party is not legally sustainable and therefore, the Court below has rightly dismissed the claim of the Petitioner/third party.
6. Learned Counsel appearing for the Petitioner, in support of his contention, relied on the following decisions:
1. Harbans v. Om Prakash 2006 (2) MLJ 54 (S.C.)
2.
3. Nanjappa, H.G v. M.F.C Industries (P) Ltd. 1987 (100) LW 4
7. This Court in Nanjappa, H.G v. M.F.C Industries (P) Ltd. reported in 1987 (100) LW 4, has held that memorandum accompanying a list of title deeds deposited under an equitable mortgage does not require any registration and the same is admissible in evidence.
8. Referring the aforesaid decision, this Court in
4. In fact, there is a decision of the Hon''ble Chief Justice, M.N. Chandurkar, Nanjappa, H.G v. M.F.C. Industries (P) Ltd. 1987 (100) LW 4, wherein, the learned Judge has held that memorandum accompanying a list of title deeds deposited under an equitable mortgage did not require registration and is admissible in evidence. 5. Apparently, the Explanation came to be added to the said Article in the light of the ratio laid down in the said decision. In any case, the Document No. 1, which is a memorandum of deposit of title deeds, is dated 11.11.2000. Therefore, even applying Article 6(2)(a) of the Indian Stamp Act, having regard to the addition of Explanation with effect from 16.12.2004, there was no scope to hold that the same would attract levy of stamp duty penalty to the present Document No. 1, inasmuch as the said document came into existence long prior to the inclusion of the Explanation to Article 6(2)(a) of the Act.
9. As per Article 6(2)(a) of Indian Stamp Act, 1899, a deed in the nature of a Memorandum of deposit of title deeds deposited under equitable mortgage does not require registration and is admissible in evidence. The aforesaid legal position has not been disputed by the learned Counsel for the contesting Respondent.
10. As contended by the learned Counsel appearing for the Petitioner, it has been made clear that when a deed is in the nature of memorandum of depositing title deeds under equitable mortgage, which requires no registration. However, in the instant case, it has been made clear that the loan was obtained by the first Respondent from the revision Petitioner on 10.09.1997 itself, by way of executing a promissory note, however, for the reasons best known to the Petitioner herein, no suit was filed and no decree was obtained against the first Respondent by the Petitioner herein, based on the said promissory note.
11. As contended by the learned Counsel appearing for the second Respondent, the original of Ex.P.4, unregistered equitable mortgage deed, dated 15.09.1997 was only a collateral document, in support of the loan, that was obtained on 10.09.1997 from the Petitioner herein under the promissory note. The Petitioner cannot place his claim, based on both the promissory note, dated 10.09.1997 as well as the memorandum executed on 15.09.1997, for depositing documents towards the equitable mortgage.
12. In the aforesaid circumstances, it is clear that the promissory note, dated 10.09.1997 is the primary document executed by the first Respondent herein in favour of the Petitioner and the subsequent document is only a collateral document, whereby furnished security and therefore, the time limit is only three years, as it is based on promissory note. For the reasons best known to the Petitioner, he has not filed any suit against the first Respondent and no decree was obtained from the first Respondent, based on the loan obtained on the promissory note.
13. It is also not in dispute that the Petitioner has not filed any suit till date, based on the alleged equitable mortgage created on 15.09.2007. Even assuming for the sake of argument, there was equitable mortgage, it cannot be disputed that the time limit, as contemplated under the Limitation Act is only 12 years, however, no suit was filed and no decree was obtained by the Petitioner herein against the first Respondent.
14. In Harbans v. Om Prakash reported in 2006 (2) MLJ 54 (S.C.), the Hon''ble Apex Court has held as follows:
9. Though the decision in
10. In Mulla''s The Transfer of Property Act, Ninth Edition, certain statements are relevant, They read as follows:
Right of redemption: The mortgagor in Indian Law is the owner who had parted with some rights of ownership as the right with some rights of ownership as the right of redemption is a right which he exercises by virtue of this residuary ownership to resume what he has parted with. The section affirms a right of redemption in all mortgages and thus carries out the recommendation of the Privy Council in Thumbuswamy''s case (1875) 1 Mad.1, 2, 1A, 241, that the Legislature should intervene to recognize a right of redemption in mortgages by conditional sale. In India this right of redemption is however, a statutory one, and, therefore, a legal right as stated by the judicial committee. Right of redemption cannot be extinguished by any agreement made at the time of the mortgage as part of the mortgage transaction.
15. In the aforesaid decision, the Hon''ble Supreme Court has laid down the ratio that when there is no stipulation regarding period of limitation, a mortgage can be redeemed at any time. It is a well settled proposition of law that once a mortgage is always a mortgage, since by way of the same, the mortgagee cannot claim title to the property, by way of adverse possession. The aforesaid decision is no way applicable to the facts and circumstances of this case, as there is time limit for any simple money claim as well as the claim based on mortgage.
16. It is an admitted fact that the second Respondent had filed the suit in O.S. No. 9 of 2001 against the first Respondent and got a money decree, which reached its finality. Pursuant to the decree, the second Respondent herein filed Execution Petition in E.P.R. No. 77 of 2004. The Petitioner/third party has filed the Execution Application in E.A. No. 66 of 2007 only on 07.03.2007, stating that he had first charge over the property, based on the time barred pro-note, that was executed on 10.09.1997 and the alleged unregistered equitable mortgage created on 15.09.1997. As there is no decree obtained by the Petitioner/third party from a competent Court against the first Respondent and there is no attachment over the property, based on the decree, this Court is of the view that the Petitioner cannot claim any right over the property, based on the said time barred pro-note and the alleged equitable mortgage as first secured creditor. As contended by the learned Counsel for the second Respondent/decree-holder, even the alleged equitable mortgage is time barred.
17. When a third party is placing his claim based on pro-note executed on the date of obtaining loan as well as a subsequent unregistered document of memorandum of depositing title deeds for creating equitable mortgage, where another parties right is also involved, the same could be construed only a loan, based on promissory note and the time limit is only 3 years and that the depositing of title deeds is only a collateral security, which does not extend the period of limitation up to 12 years.
18. In the aforesaid facts and circumstances, I am of the view that the claim of the petitioner is not legally sustainable and there is no illegality or material irregularity in the impugned order passed by the Court below, so as to warrant any interference by this Court. Hence, this revision is liable to be dismissed as no merits.
19. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, there is no order as to costs.
