2005 (2) TMI 833 - SC - Indian Laws

Whether the suit filed by the plaintiff was premature, it ought to have been dismissed and there was no justification for the High Court to have made an order of remand in suit No. 3033/58 by its judgment dated 18.1.1966?

Summary

Issues:
1. Premature filing of mortgage suit
2. Validity of remand order by High Court

Analysis:
1. Premature filing of mortgage suit:
The case involved a civil suit for redemption of a mortgage with a complex history. The plaintiff contended that the 60-year period fixed for the mortgage was a clog on the equity of redemption, rendering it null and void. The trial court initially dismissed all three suits for redemption, stating that the heirs of the original mortgagor failed to claim redemption within 12 years of her death, leading to the mortgagee becoming the possessor of the property. The First Additional Civil Judge also dismissed the appeal on the grounds of prematurity and lack of clog on redemption. However, the High Court allowed the second appeal, emphasizing that the plaintiff's statement not to take possession before the mortgage's expiry allowed the suit to proceed on merit. Despite the appellants' contention that the remand order was erroneous, the High Court's decision was upheld, leading to further appeals.

2. Validity of remand order by High Court:
The appellants challenged the High Court's remand order, arguing that a premature mortgage suit must be dismissed, and the plaintiff can refile after the mortgage period ends. Citing previous judgments, the counsel contended that an order of remand is interlocutory and can be challenged even after the final judgment. The Supreme Court agreed with the appellants, stating that the High Court's decision to continue the suit based on the plaintiff's agreement not to seek possession before the mortgage's expiry was legally flawed. Consequently, the remand order and all subsequent proceedings were declared invalid, reaffirming the trial court's dismissal of the suit as premature. The appellants were awarded costs for the appeal.

In conclusion, the Supreme Court allowed the appeal, setting aside the High Court's remand order and declaring all subsequent proceedings as invalid. The original judgment dismissing the suit as premature was upheld, emphasizing the importance of adhering to legal procedures in mortgage redemption cases.