Holding

The Court held that the appellants are estopped from challenging the extension of time and that no foreclosure decree existed, leading to dismissal of the appeal.

Summary

The appellants (mortgagees) challenged a High Court order that had extended time for the mortgagor to deposit the amount representing the value of improvements on mortgaged property. The trial court had repeatedly extended the deadline under Order XXXIV Rule 5 of the CPC, and the mortgagor eventually deposited the sum. The appellants argued that the extensions were illegal and that the mortgage should be foreclosed. The Supreme Court held that the extensions were within the court’s statutory power, that no decree of foreclosure had been passed, and that the appellants, by their conduct—including participation in the execution proceedings and acceptance of the deposited amount—were estopped from contesting the order. Consequently, the appeal was dismissed.

Issues considered

The legality of repeatedly extending the time for payment under Order XXXIV Rule 5 of the CPC as amended by Kerala.
Whether a decree of foreclosure was passed or the right of redemption was extinguished.
Whether the appellants are estopped from challenging the extension of time and the subsequent order.
Whether the mortgagee’s right to foreclose can be exercised without a mortgage deed and a specific foreclosure decree.

Legislation cited

Code of Civil Procedure, 1908s. Order XXXIV Rule 5, s. Order XXXIV Rule 8(3)
Transfer of Property Acts. Section 60

Subjects

mortgageredemptionforeclosureextension of timeestoppelwaiverCPC Order XXXIVKerala Compensation for Tenants Improvements Actcivil appeal

Judgment

[2008] 12 S.C.R. 1069

K. VILASINI & ORS. A
v.
EDWIN PERIERA & ORS.
(Civil Appeal No. 5476 .of 2008)
AUGUST 29, 2008
B
[S.B. SINHA AND AFTAB ALAM, JJ.]

Code of Civil Procedure, 1908- 0. 34 rr. 5 (as amended
in State of Kera/a) and 8 (3) - Mortgage - Suit seeking
redemption - Decreed with direction to mortgagor to pay the c
amount towards value of improvements made on suit property
- Time of payment extended by trial court from time fo time
- Denial to grant further time - High Court in writ petition of
the mortgagor exparte extending the time for depositing the
amount - Mortgagee filing writ petition challenging grant of
0
extention of time by trial court - Also filing interlocutory
application in the mortgator's writ petition recalling its order
passed therein - High Court by impugned order dismissing
the writ petition as well as the application - Decree executed
and mortgagor put in possession of the suit property - Appeal
only against the order dismissing the writ petition and not E
against order of dismissal of interlocutory application - Held:·
In the facts of the case, mortgage cannot be said to have
been foreclosed - · Time for depositing the amount towards
value of improvement was passed u!O.. 34 r. 5 - In view of
failure to challenge the order of High Court passed in F
mortgagor's writ petition and in view of the subsequent events,
mortgagees are estopped from challenging extention of time
- Kera/a Compensation for Tenants Improvements Act, 1959.
Predecessor-in-interest of the respondents, G
executed an usufructuary mortgage in favour of the
.M: predecessor-in-interest of the appellants. Mortgagor filed
a suit for redemption of the mortgage. Decree was passed
therein directing the mortgagor to deposit a sum towards
1009 H
1070 SUPREME COURT REPORTS (2008] 12 S.C.R.

A the value of the substantial improvements effected by
the mortgagees in the suit property, within a period of six
months. The time to deposit the amount was extended at
the behest of the mortgagor. After four years of the expiry
of extended time, respondent No. 1 (son of the mortgagor-
s plaintiff) filed an application praying for cohdonation of
delay in making the deposit taking the plea that he was
not aware of the decree. By order dated 31.3.2005, the
delay was condoned directing him to pay the amount.
Mortgagor respondent No. 1 did not complywith the order
C and sought further extention of time which was rejected.
He filed a writ petition against denial of further extention
of time. The petition was allowed by High Court granting
extention of time to deposit the amount. Pursuant thereto,
mortgagor deposited the amount.
D Appellant-mortgagees filed writ petition challenging
the order dated 31.3.2005. They also filed an application
in the writ petition filed by the mortgagor recalling the
order of the High Court whereby the mortgagor was
granted extention of time for depositing the amount
E towards value of improvements. High Court by the
impugned order dismissed the writ petition as well as the
application, and directed to revalue the improvements.
After the final decree was passed, values of improvement
were redetermined. Respondents deposited the
F redetermined amount and hence put in possession of
the suit property. The present appeal is filed challenging
the order dismissing the writ petition.
Dismissing the appeal, the Court
G HELD: 1.1 As the time for deposit of payment has
been extended by the court from time to time in terms of
Rule 5 of Order XXXIV CPC, as amended by the State of
Kerala, the appellants cannot be permitted to raise their
purported claim of right of foreclosure before this Court.
Indisputably, the court has the power to extend the time .
H
K. VILASINI & ORS. v. EDWIN PERIERA & ORS. 1071

The jurisdiction has to be exercised judiciously. Once A
·~
the court exercises its power to postpone the date fixed
for deposit of the amount due under the mortgage, the
same could have been subject matter of challenge, but
the appellants have failed to do so. [Para 10][1080,C-E]
1.2 An order permitting foreclosure in terms of Order B
XXXIV Rule 8(3) can be passed only upon ascertaining
J),
the nature of the mortgage and the rights of the parties
thereunder. The two circumstances in which the right of
redemption is extinguished by passing of a decree are:
(i) a final decree in a suit for foreclosure under Order c
XXXIV Rule 3(2), CPC; and (ii) a final decree in a suit for
redemption under Order XXXIV Rule 8(3) therof. The deed
of mortgage has not been filed before this Court. No
foundational fact, therefore, had been laid by the
appellants so as to enable the trial court to pass a decree D
for foreclosure. No step was also taken for enforcement
.)..-
I of the said purported right. [Paras 9 and 10) [1078,E; 1080,
• B; 1078,F]
Mhadagonda Ramgonda Patil and Ors. v. Shripal
Ba/want Rainade and Ors. 1988 (3) SCC 298; Achaldas E
Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan
Heda (Dead) through LRs. and Ors. 2003 (3) SCC 614;
Philomina Jose v. Federal Bank Ltd. and Ors. 2006 (2) SCC
608 - referred to.
F
2.1 Even the subsequent events, categorically show
that the mortggees- appellants in view of their conduct
are estopped and precluded from questioning the·
correctness of the order passed in the writ petition filed
by them. In the facts that appellant No. 1 had claimed the
G
amount deposited by the respondent and possession of
>< the suit property had been delivered to the respondents,
the right to redeem a mortgage thus having -been
enforced; it is not a fit case where the impugned order
should be interfered with. It is now a well settled principle
H
1072 SUPREME COURT REPORTS [2008] 12 S.C.R.

A of law that even a legal right can be waived. It is also well
settled that nobody can approbate and reprobate at the
same time. [Paras 8 and 12] [1078,0;1081,D-E]
2.2 The principle of estoppel would also apply in a
case of this nature. Appellants could have filed an
8 application for stay before this Court but they did not
seem to press for their interim relief when the execution
case was proceeding. They did not file any application
for stay before this Court. They even took part in the
execution petition. They did not state that they were doing
C so without prejudice to their rights and their contentions.
No prayer was made before the Executing Court that any
order passed therein·should be subject to the result of
this appeal. At least after the amount was deposited, they
could have approached this Court and/or Executing Court
D not to deliver possession of the property. They chose
not to do so. [Para 13] [108f,F-H]
Deewan Singh and Ors. v. Rajendra Pd. Ardevi and Ors.
AIR 2007 SC 767 - referred to.
E 2.3 By the impugned judgment, a writ petition as
also the Interlocutory application has been disposed of.
It was thus obligatory on the part of the appellants to
challenge the order passed in both the proceedings. As
the amount towards the improvements made on the suit
F property had been deposited, appellants must be held to
have accepted the correctness of the order dated (-
20.5.2005 disposing of the Writ Petition filed by the
mortgagor. [Para 14] [1082,A-B]
Case Law Reference
G 1988 (3) sec 298 Referred to. Para 10
)'-.:
2003 (3) sec 614 Referred to. Para 10
2006 (2) sec 608 Referred to. Para 10
AIR 2007 SC 767 Referred to. Para 12
H
K. VILASINI & ORS. v. EDWIN PERIERA & ORS. '1073.

~ Cl\/ILAPPELLATE JURISDICTION: Civil Appeal No. 5476 A
of 2008
From the final Judgment and Order dated 6.3.2006 of the
High Court of kerala in W.P. (C) No. 33208 of 2005 & I.A. No.
3350 of 2006 in W.P. No. 12156 of 2005
B
Subramonium Prasad and Jay Kishor Singh for the
~
Appellants.

P.B. Suresh Kumar, Dr. K.P. Kylasanatha Pillay, A. Nisar
and Ch. Leela Sarveswar (for D. Mahesh Babu) for the
Respondents. c
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. This appeal is directed against the judgment and order
0
dated 6.3.2006 passed by the High Court of Kerala in Writ
er Petition (C) No. 33208 of 2005 and I.A. No. 3350 of 2006 in
• WritPetition No. 12156 of 2005 .
Defendant - judgment debtor is the appellant before us.
E
The properties in suit belonged to one Francis Periera
(Periera), the predecessor-in-interest of the respondent. A deed
of usufructuary mortgage was executed by him in favour of one
Kumaran Kesevan, the predecessor-in-interest of the
appellants. Periera is said to have executed a will in terms
whereof the equity of redemption in respect of the said mortgage F
-~ ultimately devolved on some of his children. A suit was filed for
redemption of the said mortgage by his successors. A
preliminary decree was passed therein. Final decree was
passed on 11. 7 .1997 directing the respondents herein to
deposit a sum of Rs.41,33,508. 70 within a period of six months G
"::,,Ji/ purported to be as a part of the redemption being the value of
the substantial improvements effected by the mortgagees in
the said properties. Indisputably, the said amount was not
deposited. An application for extension of time being I.A No.
24 7 of 1998 was filed by the respondents on 6.1.1998, wl·~ich I-I
I'
·1074 SUPREME COURT REPORTS [2008] 12 S.C.R.

A was allowed in terms whereof the time for deposit of the amount
was extended upto 11. 7 .1998. However, on 10. 7 .1998, another
application for extension for a period of six moriths was filed.
It was marked as I.A. No. 5800 of 1998, but the same was
dismissed. The earlier Application being I.A. No.247 of 1998
B also came to be dismissed ultimately by an order dated
13. 7.1998 for default. An application for restoration thereof was
filed on 1.9.1999. By an order dated 8.2.2001, the said
application for restoration was allowed and the time to deposit
the amount was extended till 16.2.2001.
C On 22.2.2005, the 19th plaintiff, respondent No. 1 herein,
being son of the deceased 4th plaintiff filed an application marked
as I.A. No. 2253 of 2005 praying for condoning the delay in
making the deposit and fer issuance of challan for depositing the
amount stating that he was not aware that the said amount has
D to be deposited and he could come to know thereabout only
when he received the certified copy of the decree on 20 .10 .2004.
-+
3. The II Additional Munsiff by his order dated 3·1.3.2005
allowed the said I .A upon condoning the delay on payment of
cost of Rs.1000/- directing:
E
"But the petitioner filed affidavit stating that he came to
know about the amount only on 20.10.2004. The petitioner
could have filed the affidavit by stating the dismissal of the
earlier applications filed for extending the time for paying
F the amount. The petitioner has no complaint against his
counsel. Considering the huge amount to be paid by the
petitioner I hold that the delay can be condoned subject to
condition to pay cost of Rs.1000/- to the contesting second
counter petitioner for the ends of justice.
G In the result I.A. is allowed and the delay is condoned on
payment of cost of Rs.1000/- to the second counter
petitioner. The chal!an shall be issued to the petitioner for
remitting the amount as per final de.cree. The petitioner
shall deposit the said amount on or before. 7.4.2005
H otherwtse the petition will be stand dismissed ...
K. VILASINI & ORS. v. EDWIN PERIERA & ORS. 1075
[S.B. SINHA, J.]
~ ~-
l
Indisputably, the said order was not complied with. A
Respondent No. 1 filed another application being I.A. No. 4106
of 2005 for further extension of time, which was rejected on
8.4.2005.
Aggrieved thereby and dissatisfied therewith, a Writ
B
4 Petition which was marked as Writ Petition (C) No. 12156 of
2005 was filed. By reason of a judgment and order dated

- 20.5.2005, the said Writ Petition was allowed without any notice
to the respondents therein, directing:

"2. Considering the facts of this case, I find that it is not
necessary to issue notice to all the 12 Respondents.
c
Hence, notice is waived .
... 3. Taking into account the various facts brought to my
notice and also the quantum of the value of improvements to be
deposited by the Petitioner, I extend the time granted by the 0
t .trial Court under Ext. P2 by one month. Petitioner shall deposit
~
the amount stated in Ext. P2 order accordingly.
......._ This Writ Petition is disposed of as above."
,

Indisputably, the value of improvements was deposited by E
,. the respondent No. 1 in the trial court on 18.6.2005.
Appellants filed a Writ Petition being Writ Petition (C) No.
33208 of 2005 challenging the order of the II Additional Munsiff
passed on 31.3.2005. An application for recall of the order
-1. dated 20.5.2005 passed in Writ Petition (C) No. 12156of2005 F
granting one month's time to deposit the value of the
improvements was also filed. The said application was marked
as I.A. No. 3350 of 2006 in Writ Petition (C) No. 12156 of
2005. By reason of the impugned judgment, the said Writ
" ....( Petition as also the interlocutory application filed by the G
appellants was dismissed directing to revalue the improvemen~·"'
...,,,,
effected by them on the suit property purported to be in terms
of the provisions of the Kerala Compensation for Tenants
Improvements Act, 1959.
H
1076 SUPREME COURT REPORTS [2008] 12 S.C.R.

A 4. Second appellant thereafter filed an application for
r "':
determination of the value of improvements to the suit property
effected by the appellants after passing of the final decree.
Before proceeding further, we may notice that although in
the body of the memorandum of appeal the order dated 6.3.2006
B passed in both Writ Petition (C) No. 33208 of 2005 and lA. No.
'/.:-·
3350 of 2006 in Writ Petition (C) No. 12159 of 2005 had been
mentioned, but the main prayer: reads as under:
"It is, therefore, most respectfully prayed that Your Lordships
c may graciously be pleased to grant the Petitioner Special
Leave Petition against the judgment dated 6.3.2006
passed by the High Court of Kerala in Writ Petition (C)
No. 33208 of 2005 and pass any other order or orders ,.{
which may be deemed fit and proper to meet the ends of
justice."
D
Thus the appellants have questioned only the order of the
-+
-4
High Court passed in Writ Petition (C) No. 33208 of 2005.
The deposit-of the amount by the appellant had been made ~

in terms of the order passed in I.A. No. 2253 of 2005, which.is
E not under challenge.
Notice in this appeal was directed to be issued on
10.11.2006 whereby liberty was granted to the appellants to
mention after the service was complete. There is nothing on
F record to show as to whether the interim relief was pressed for j._. '
or not. The execution application, however, proceeded in the
court of Additional Munsiff. A Commissioner was appointed for
determining the value of improvements made to the suit property
after passing of the final decree. Respondents were directed
to deposit a sum of Rs.5,38,269.50. The said order has been
G ~..'.'.,
complied with by the respondents whereafter they were put in
possession of the suit properties through process of the Court \
on 23.2.2007.
5. Mr. Subramonium Prasad, learned counsel appearing
H on behalf 9f the petiti~ner in support of this appeal would urge:
-I K. VILASINI & ORS. v. EDWIN PERIERA & ORS. 1077
~ --{ [S.B. SINHA, J.]

i. The extension of time had wrongly been granted by A
the courts below on so many occasions.
ii. Even the peremptory time granted by the trial court
having not been complied with, the respondents'
application should have been dismissed by reason
----)'. whereof; they must be held to have lost their right of B
redemption; the logical consequence whereof would
be that the mortgage did not subsist.
6. Mr. Nageshwar Rao and Mr. P. B. Suresh Kumar, learned
counsel appearing on behalf of the respondents, on the other c
hand, pointed out that the app.ellants have not filed any
application for foreclosure of mortgage. Drawing our attention
to the Kerala Amendment of Order XXXIV Rule 5 of the Code
of Civil Procedure, the learned counsel would contend that the
same provides for a power in the court to postpone the date of
~ D
payment. In any event, it was urged that in view of the subsequent
;.
. events appellants have. waived their right of foreclosure of
mortgage, if any.
7. A right of foreclosure is to be exercised in terms of
Order XXXIV Rule 8(3) of the Code wherefor no decree was E
passed. The suit for redemption was decreed. Rule 5 of Order

-
XXXIV as amended by the State of Kerala reads as under:
"5. Date of payment-The Court may, upon good cause
~i shown and upon such terms, if any, as it thinks fit, postpone
the date fixed for payment under this Order from time to F
time."
It is this power which the learned trial judge has been
exercising from time to time. We have noticed hereinbefore
-::..: that though a peremptory time was granted, the High Court in
G
terms of its order dated 20.5.2005 passed in Writ Petition (C)
No. 12156 of 2005 granted respondent No. 1 herein one
month's further time to deposit the value of improvements. The
said order was complied with.
Although the said order was ex parte in nature, appellants H
..

1078 SUPREME COURT REPORTS [2008] 12 S.C.R

'r ~
A should have questioned the correctness thereof. Instead, he
filed an interlocutory application. The same was also dismissed.
The order passed in the said interlocutory application for recalling
of the order dated 20.5.2005, as noticed hereinbefore, is also I
)--
not the subject matter of this appeal.The challenge in this appeal l
B is confined only to the order dated 6.3.2006 passed in Writ
Petition (C) No. 33208 of 2005. 'fa- I
;\
8. Mr. Subramonium Prasad submitted-that by mistake no
prayer has been made for setting aside the order, but even in
the substantial questions of law formulated no ground had been
c taken that the ex parte order passed in favour of the respondent
No. 1 herein was illegal.
Even if we had not taken note of the aforementioned
technicality, the subsequent events, in our'opinion, categorically \

D
show that the appellants herein in view of their conduct are I
'
estopped and precluded from questioning the correctness of -1 I
the order dated 6.3.2006 passed in Writ Petition (C) No. 33208 ...
of 2005. We would, however, advert to the said question a little )
later. r
'\

E 9. We may at this stage notice that an order permitting ..
I

foreclosure in terms of Order XX.XIV Rule 8(3) can be passed ~

only upon ascertaining the nature of the mortgage and the rights
of the parties thereunder. The deed of mortgage has not been
filed before this Court. No foundational fact, therefore, had been
F laid by the appellants so as to enable the trial court to pass a -1--
decree for foreclosure. No step was also taken for enforcement
of the said purported right.
1ff This Court in Achaldas Ourgaji Oswa/ (Dead) through
LRs. v. Ramvilas Gangabisan Heda (Dead) through LRs. &
G ors. [(2003) 3 sec 614] stated the law, thus: ;....~

"22. The right of redemption of a mortgagor being a
statutory right, the same can be taken away only in terms
of the proviso appended to Section 60 of the Act which is ~
extinguished either by a decree or by act of parties.
H .}
K. VILASINI & ORS. v. EDWIN PERIERA & ORS. 1079
[S.B. SINHA, J.]

-f Admittedly, in the instant case, no decree has been passed A
extinguishing the right of the mortgagor nor has such right
come to an end by act of the parties."
We may also notice that in Mhadagonda Ramgonda Patil
& ors. v. Shripal Ba/want Rainade & ors. [(1988) 3 SCC 298], B
this Court held as under:
"12. It is thus manifestly clear that the right of redemption
1
will be extinguished (1) by the act of the parties or (2) by
the decree of a Court. We are not concerned with the
question of extinguishment of the right of redemption by c
the act of the parties. The question is whether by the
preliminary decree or final decree passed in the earlier
suit, the right of the respondents to redeem the mort_gages
has been extinguished. The decree that is referred to in
the proviso to Section 60 of the Transfer of Property Act
0
is a final decree in a suit for foreclosure, as provided in
Sub-rule (2) of Rule 3 of Order XXXIV and a final decree
in a redemption suit as provided in Order XXXIV, Rule
8(3)(a) of the CPC. Sub-rule (2) of Rule 3, inter alia,
provides that where payment in accordance with Sub-rule
(1) has not been made, the court shall, on an application E
made by the plaintiff in this behalf, pass a final decree
declaring that the defendant and all persons claiming
through or under him are debarred from all right to redeem
the mortgaged property and also, if necessary, ordering
the defendant to put the plaintiff in possession of the F
property. Thus, in a final decree in a suit for foreclosure,
on the failure of the defendant to pay all amounts due, the
extinguishment of the right of redemption has to be
specifically declared. Again, in a final decree in a suit for
redemption of mortgage by conditional sale or for G
redemption of an anomalous mortgage, the extinguishment
of the right of redemption has to .be specifically declared,
as provided in Clause (a} of Sub-rule (3) of Rule 8 of
Order XXXIV of the CPC. These are the two
circumstances-(1) a final decree in a suit for foreclosure H
1080 SUPREME COURT REPORTS [2008] 12 S.C.R.

under Order XXXIV, Rule 3(2); and (2) a final decree in a
suit for redemption under Order XXX!V, Rule 8(3)(a) of
the CPC-when the right of redemption is extinguished."
The two circumstances in which the right of redemption is
extinguished by passing of a decree are: (i) a final decree in a
8 · suit for foreclosure under Order XXXIV Rule 3(2), CPC; and (ii)
a final decree in a suit for redemption under Order XXXIV Rule
. 8(3) thereof. {See Philomina Jose v. Federal Bank Ltd. & ors.
[(2006) 2 sec 608]} .
c As the time fo.r deposit of. payment has been extended by
the court from time to time in terms of Rule 5 of Order XXXIV
of the Code as amended by the State of Kera la, we do not think
that the appellants can be permitted to raise their purported
claim of right of foreclosure before us. Indisputably, the court
has the power to extend the time. Grant of extension of time to
0
deposit the amount, however, is not automatic. The jurisdiction
has to be exercised judiciously. However, the fact that the court
has the requisite jurisdiction to extend the time is neither denied
nor disputed. Once the court exercises its power to postpone
the date fixed tor deposit of the amount due under the mortgage,
E the same could have been subject matter of challenge, but as
noticed hereinbefore, the appellants have failed to do so.
11 .. Coming now to the subsequent events, which·we have
noticed hereto-before, it appears, that appellant No. 1 herself
F had filed an application before th·e court of Munsiff being E.P.
No. 359 of 2005 in O.S. No. 885of1960 which is to the following
effect:
"I am the 5th defendant in the above case. I have
constructed a Piggary Farm in the Schedule Property and
G the said farm is being run by my son Shri Mohandas who
has taken a license, for the same. He has applied for the
license in the Panchayath Office. The Piggary farm is
constructed by me. Since I cannot run it directly, I made
Mohandas to apply for the li;:;ence. I am claiming the
.~' ·amount deposited for the imprcvements since I incurred
''
K. VILASINI & ORS. v. EDWIN PERIERA & ORS. 1081
[S.8. SINHA, J.]
/
-1 expenditure for constructing the same. I have the right to A
claim for the same. All the above stated facts are true."
(emphasis supplied)
She,~ therefore, claimed the amount deposited by the
respondents by reason whereof she waived her right. Apart B
-* from the same they proceeded in the execution case despite
pendency ·of this Appeal. They filed _applications for
determination of the value of the improvements made by them.
Only on their application, Commissioner was appointed; they
filed objections thereto; the same had been considered and c
order was passed and pursuant thereto the respondents
• deposited the amount.
12. We have noticed hereinbefore that apart from other
mortgagors who are not the appellants, appellant No. 1 herself
had filed an application for withdrawal of the amount. Even D
~ possession has been delivered in favour of the- respondents.
• The right to redeem a mortgage thus having been enforced, in
our opinion, it is not a fit case where the impugned order should
be interfered with. It is now a well settled principle of law that
even a legal right can be waived. It is also well settled that E 1

nobody can approbate and reprobate at the same time. [See
Deewan Singh and Ors. v: Rajendra Pd. Ardevi and Ors. (AIR
2007 SC 767)].
13. The principle of estoppel would also apply in a case
of this nature. Appellants could have filed an application for F
~ stay before us; they did not seem to press for their interim relief
when the execution case was proceeding. They did not file any
application for stay before this Court. They even took part in the
execution petition. They did not state that they were doing so
without prejudice to their rights and.their contentions. No prayer G
~ was made before the Executing Court that any order passed
therein should be subject to the result of this appeal. At least
after the amount was deposited, they could have approached
this Court and/or Executing Court not to deliver possession of
the property. They chose not to do so. H
1082 SUPREME COURT REPORTS [2008] 12 S.C.R.

'r .
A 14. In any event, as indicated hereinbefore the order dated
31.3.2005 passed by the Additional Munsiff in I.A. No. 2253 of
2005 was not the subject matter of challenge. By the impugned
judgment, a writ petition as also the I.A. has been disposed of.
It was thus obligatory on the part of the appellants to challenge
B. the order passed in both the proceedings. As the amount of Rs.
41,33,508. 70 had been deposited, appellants must be held to
have acc~pted the correctness of the said order dated
20.5.2005 disposing of the Writ Petition (C) No. 12156 of 2005.
15. For the reasons aforementioned, we find no merit in
C this appeal which is dismissed accordingly. However, in the
peculiar facts anc::f circumstances of the case, there shall be no
order as to costs.
K.K.T. Appeal dismissed.