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GOVINDAN NAMBOODIRI, OWNER AND versus LALITHAMBAL, W/O.NARAYANAN AMBRANTHIRI

High Court of Kerala

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GOVINDAN NAMBOODIRI, OWNER AND v. LALITHAMBAL, W/O.NARAYANAN AMBRANTHIRI - WP(C) No. 23738 of 2004(A) [2007] RD-KL 13106 (16 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 23738 of 2004(A)

1. GOVINDAN NAMBOODIRI, OWNER AND
... Petitioner

Vs

1. LALITHAMBAL, W/O.NARAYANAN AMBRANTHIRI,
... Respondent

2. GEETHA, D/O.NARAYANAN AMBRANTHIRI,

3. VENKITARAMAN, S/O.NARAYANAN AMBRANTHIRI,

4. LATHA, D/O.NARAYANAN AMBRANTHIRI,

5. PUSHPA D/O.NARAYANAN AMBRANTHIRI,

6. NEELAKANDAN NAMBYANTHIRI, OWNER &

7. VASUDEVAN NAMBOODIRI, OWNER AND

For Petitioner :SRI.P.RADHAKRISHNAN (1)

For Respondent :SMT.AYSHA YOUSEFF

The Hon'ble MR. Justice PIUS C.KURIAKOSE

Dated :16/07/2007

O R D E R

PIUS C. KURIAKOSE, J.

W.P.(C) NO. 23738 of 2004

Dated this the 16th day of July , 2007



JUDGMENT

Ext.P2 order by which the plaintiffs' application under Order 6 Rule 17 of C.P.C. for amendment of the plaint so as to incorporate additional pleadings for the purpose of contending that the suit is within the period of limitation by virtue of the admissions contained in the mortgage deed executed by the defendants has been dismissed is under challenge.

2. Heard Sri. Madhu Radhakrishnan, the learned counsel for the petitioner and Smt. Aysha Youseff the learned counsel for the respondents. The suit was one for redemption and per se the suit was filed beyond the period of limitation since the mortgage sought to be redeemed was on 27.10.1955 and the suit was filed only in 1997. On noticing the contention raised by the respondents that the suit is barred by limitation, the petitioner filed the amendment application so as to contend that in 1973 WPC No.23738/2004 2 (within the period of thirty years from 1955) the defendants and their father had mortgaged the very same property in favour of the Service Co-operative Bank, Vaikom and in that mortgage deed the existence of the present mortgage is admitted. The learned Munsiff dismissed the application upholding the contention of the respondents that it is with the objective of tiding over the bar of limitation that the application has been filed. True it is with the object of tiding over the bar of limitation, which had apparently set in in respect of the suit, that the application was filed. The question is whether there is an acknowledgment of the liability within the period of limitation extending the period of limitation from the date of acknowledgment for another 30 years.

3. The learned Munsiff has relied on the judgment of this court in Chellappan Pillai & Ors v. Gomathi Amma (2001 (1) KLT 114) and also of the Supreme Court Tilak Ram and Others v. Nathu and Others (AIR 1967 Supreme Court 935) to accept the contention raised by the respondents that the mere admission of jural relationship between the mortgagor and mortgagee is not sufficient to constitute acknowledgment WPC No.23738/2004 3 within the meaning of Section 18 of the Limitation Act. Sri.Madhu Radhakrishnan, invited my attention to Section 18 of the Limitation Act itself and argued that notwithstanding the observations of the learned Judge in Chellappan Pillai & Ors (supra) it may still be possible for the petitioner to rely on the recitals in the mortgage deed executed between the parties in favour of the Vaikom Service Co-operative Bank as acknowledgment of the mortgaged liability for the purpose of Section 18.

4. I do not propose to decide the issue finally. I feel that the question whether the present suit is barred by limitation is required to be considered by the court with some more seriousness what the leaned Munsiff has done under Ext.P2 is to virtually reject the plaint itself as barred by limitation. Under these circumstances, I set aside Ext.P2 and allow the application for amendment. But the issue regarding the limitation will continue to be an issue in the suit. The learned Munsiff will decide that issue on the basis of the recitals in the mortgage deed executed by the Service Co-operative Bank Vaikom. In other words the learned Munsiff will decide whether WPC No.23738/2004 4 the recitals therein operate as a proper acknowledgment for the purpose of Section 18. It is made clear that I have not expressed any opinion as to whether the judgment of this court in Chellappan Pillai & Ors (supra) governs the issue. I have only indicated that the learned Munsiff will decide the issue of limitation in accordance with law, i.e. Section 18 of the Limitation Act as well as binding judicial precedents. What has been done is only to allow the amendment application and nothing more. PIUS C. KURIAKOSE,

JUDGE.

dpk


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