Punjab-Haryana High Court
Narinder Singh (Died) Through Lrs And ... vs Mohinder Singh And Others on 20 December, 2013
R.S.A No.2106 of 1994 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA, AT
CHANDIGARH
*****
R.S.A. No.2106 of 1994
Date of Decision: 20.12.2013
Narinder Singh (died) through LRs and others .....Appellants
Versus
Mohinder Singh and others .....Respondents
CORAM: HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. J.S.Brar, Advocate,
for the appellants.
Mr. M.L.Saini, Advocate,
for the respondents.
1. Whether Reporters of local papers may be allowed to see the judgment?
Yes/No.
2. To be referred to the Reporter or not? Yes/No.
3. Whether the judgment should be reported in the Digest? Yes/No.
MAHAVIR S. CHAUHAN, J.
Boor Singh, predecessor-in-interest of the respondents, mortgaged, with possession, the land in suit with Partap Singh, predecessor-in-interest of the appellants vide registered deed of mortgage dated 08 Sawan, 1967 (BK), for Rs. 1224/-. Mutation of mortgage was attested on 14 Phaggan, 1972 (BK). Predecessor-in-interest of the respondents filed an application for redemption of the mortgage, under Section 04 of the Redemption of Mortgages (Punjab) Act (No.2 of 1913) (for short, 'the 1913 Act'), which was rejected by Collector, Faridkot vide order dated 11.03.1966 (Exhibit D1), saying: Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -2-
"In this case many questions, other than the question of nature of mortgage, have been raised and (sic, as) such I feel that these questions cannot be decided in summary proceedings before me. The application is, therefore, rejected. The applicants can have the mortgage amount deposited by them back."
Punjab Singh etc., successors in interest of Boor Singh and predecessors-in-interest of the respondents then brought Civil Suit No. 111 of 12.05.1966 for declaration that the order dated 11.03.1966 (Exhibit D1) was illegal and liable to be set aside and they were entitled to get the land in suit redeemed. The suit was decreed by learned Subordinate Judge Ist Class, Faridkot, vide judgment and decree dated 07.05.1968 (Decree, Exhibit D2) holding the respondents entitled to redeem the land in suit on payment of mortgage money of Rs.1,416/-. Civil Appeal No.20 of 1968 brought by the appellants to seek reversal/upsetting of judgment and decree dated 07.05.1968 (Exhibit D2), after contest, was dismissed by learned Additional District Judge, Faridkot vide judgment and decree dated 22.07.1970 (Judgment, Exhibit P10). Appellants then approached this Court by way of Regular Second Appeal (RSA) No. 1228 of 1970, which too came to be dismissed vide judgment and decree dated 20.01.1982 (Judgment, Exhibit P3).
After dismissal of RSA No. 1228 of 1970, Punjab Singh etc. approached Collector, Faridkot, for redemption of the land in suit. Appellants preferred objections to their claim for redemption. Collector, Faridkot, vide order dated 19.10.1982 (Exhibit P2), rejected the objections filed by the appellants, redeemed the land in suit in lieu of Rs. 1224/-, and ordered issuance of warrants of possession in favour of the mortgagors.
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On being challenged by the appellants, by way of Civil Suit No. 336 of 1982/RT No. 42 of 1983, order of the Collector, Faridkot, dated 19.10.1982 (Exhibit P2) was declared null and void by learned Additional Senior Subordinate Judge, Faridkot vide judgment and decree dated 22.02.1985 (Judgment, Exhibit P12).
Punjab Singh etc. preferred Civil Appeal No. 47 of 1985 to seek reversal of judgment and decree dated 22.02.1985, Exhibit P12, which, on the death of one of the appellants therein, namely Gurbaksh Singh, was ordered to abate qua said Gurbaksh Singh but, later on, on an application moved by the appellants, the appeal in its totality was ordered to abate vide order dated 20.07.1987 (Exhibit P11) by learned Additional District Judge, Faridkot. Second Appeal from Order (SAO) No. 71 of 1987 filed against order dated 20.07.1987 was dismissed vide order dated 14.11.2007 and Special Leave to Appeal Petition (SLP) brought against the order passed in SAO was also dismissed.
Punjab Singh etc. meanwhile moved an application dated 07.01.1985 (Exhibit P18) before Collector, Faridkot praying that application dated 20.02.1965 'Arjan Singh versus Gurmit Singh etc.', which was rejected vide order dated 11.03.1966, be called for and in view of the findings recorded by the Civil Court and this Court, the land in suit be redeemed and its possession restored to them. The application, however, did not find favour with the Collector and was dismissed, vide order dated 19.02.1988 (Exhibit P16), with the following observations:
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"4. I have heard learned counsel for the parties, gone through the documents tendered by them. The learned counsel for the applicants has focused the attention of this court towards Sec:12 of the Redemption of Mortgages Act which may be read as under:
"Sec:12 provides that every party aggrieved of an order made u/ss 5,7,8,9,10 or 11 of the Act may institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive. Sec: 13 lays down that the dismissal of the petition under this Act was barred in further petitioner under this Act by the same petitioner in respect of the same mortgage."
With the help of this Section, the learned counsel contended that the application dated 22.03.1982, the copy of which is Exhibit P11, was not a second application, but only an application in continuation of the previous one and that it was filed in pursuance of the decree of the civil court. This argument of the learned counsel and Sec:12 of the Redemption Act, referred to above, are not convincing at all because the suit filed in the civil court was not u/s 12 of the Act as the learned Collector vide his order dated 11.3.1966 had simply held that complicated questions of law and fact have arisen in the redemption proceedings which cannot be determined in a summary way and needs to be determined by the civil court. Under these circumstances no suit under Section 12 was required to be instituted. The applicants, at the most, could file suit for possession by redemption, only in case the suit was out of limitation. No such suit had ever been instituted by the applicants. The suits and appeals which went upto High Court were simply for declaration and if these have been decreed against the respondents, the same has got no legal effect upon them, as the decree was not executable.
5. It has been next contended by the learned counsel for the applicants that after the disposal of declaratory suit, the applicants moved an application before the SDO(C), Faridkot, for the redemption of the disputed land, which was accepted on 10.10.1982 and it was ordered that warrant of possession be issued. With this submission, the learned counsel submitted that the previous record, as prayed for, be summoned from the record room, land in dispute redeemed and possession delivered to the applicants. This argument of the learned counsel is again not convincing, as this order of learned SDO(C), had been challenged in the civil suit by the respondents, which has Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -5- been decreed in their favour on 22.2.1985, as is evident from the Photostat copy placed on the file and the appeal filed by the applicants against this judgment has been dismissed by the Addl:District:Judge, Faridkot, on 20.7.1987. Thus, the present application in the present form is not maintainable and is without any merit. The entire controversy between the parties stands settled by the civil court. I, therefore, hold that the application filed by the applicants, having no legs to stand is dismissed, accordingly."
Crestfallen by order dated 19.02.1988 (Exhibit P16), respondents brought Civil Suit No. 598 of 09.09.1988 to seek a declaration that order dated 19.02.1988 (Exhibit P16) was illegal and they were entitled to the delivery of actual possession; and a decree of possession as a consequential relief.
Respondents' suit was contested by the appellants saying that predecessors-in-interest of the respondents did not file a suit for possession and had sought only a declaration, therefore, application for possession before the Collector was not maintainable as the decree of declaration was not executable; second application for getting possession was barred by Section 13 of the 1913 Act and that the judgment and decree dated 22.02.1985 (Judgment, Exhibit P12) of the learned Additional Senior Subordinate Judge, Faridkot, declaring order dated 19.10.1982 (Exhibit P2), whereby land in suit was ordered to be redeemed to the respondents, was legal and valid and was holding the field as appeal against this order was still pending.
On completion of pleadings, court of learned Additional Senior Subordinate Judge, Faridkot (here-in-after referred to as 'the trial court') identified, from the pleadings of the parties, following issues:
"1. Whether the plaintiffs are entitled to a decree for Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -6- declaration, as prayed for? OPP
2. Whether the civil court decree is not executable as alleged in para No. 2 of the written statement? OPD
3. Whether the suit is not maintainable as alleged in para No. 9 of the written statement? OPD
4. Whether the suit is liable to be stayed in view of pendency of the appeal in the Hon'ble High Court? OPD
5. Whether the suit is not valued properly for the purposes of court fee and jurisdiction? OPD
6. Whether the plaintiffs are entitled to the delivery of possession of the suit property? OPP
7. Relief."
Both the sides adduced evidence and were heard by the learned trial court.
Vide judgment and decree dated 16.09.1991, trial court dismissed respondents' suit by holding that judgment and decree dated 07.05.1968, Exhibit D2, was not executable and in view of judgment and decree dated 22.02.1985, Exhibit P12, respondents were not entitled to possession of the land, in suit.
However, learned District Judge, Faridkot (here-in-after referred to as 'the first appellate court'), vide judgment and decree dated 14.05.1994, accepted Civil Appeal No. 315 of 23.11.1991 brought by the respondents, reversed the findings of the trial court and decreed their suit by holding them entitled to possession of the land in suit while declaring order, dated 19.02.1988 (Exhibit P16) of the Collector as illegal and void, and directed Collector, Faridkot to hold proceedings for delivery of possession of the land in suit and issue warrants of possession in favour of, and cause delivery of possession thereof to, the respondents.
To assail the correctness of judgment and decree dated 14.05.1994 Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -7- the appellants (defendants in suit) have brought the instant regular second appeal under Section 100 of the Code of Civil Procedure.
I have heard learned counsel for the parties and have also examined the record very carefully.
Learned counsel representing the appellants prayed for acceptance of the appeal, upsetting and reversal of judgment and decree dated 14.05.1994 of the learned first appellate court and for restoration of the one dated 16.09.1991 of the learned trial court, saying that the mortgagors' first application for redemption having been rejected vide order dated 11.03.1966 (Exhibit D1), they were required to bring a suit for possession, which they did not, and, instead, opted to seek a declaration that they were entitled to redeem the land in suit wherein they succeeded upto the level of regular second appeal but the second application made by them based on their success in that suit was not maintainable and it was wrongly granted by the Collector vide order dated 19.10.1982 (Exhibit P2), for, the first application having been rejected vide order dated 11.03.1966 (Exhibit D1), second application was barred under Section 13 of the 1913 Act; the decree of declaration, in the absence of consequential relief of possession, was not executable and there was no order of redemption of mortgage. According to the learned counsel for the appellants illegality committed by the Collector in allowing the second application, vide order dated 19.10.1982 (Exhibit P2), was set right by the learned trial court by declaring that order illegal, vide judgment and decree dated 22.02.1985, Exhibit P12; appeal brought by the respondents against it was abated, vide Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -8- order dated 20.07.1987 (Exhibit P11), which had been upheld upto the level of Special Leave to Appeal Petition by the Hon'ble Supreme Court; and, therefore, the instant suit is barred by Order XXII Rule 09 of the Code of Civil Procedure.
Per Contra, learned counsel appearing for the respondents shielded the impugned judgment and decree saying neither Section 13 of the 1913 Act nor Order XXII Rule 09 of the Code of Civil Procedure is attracted to the case in hand in so far as, the application was not dismissed on merits and was rejected only on the ground that the Collector could not adjudicate upon the complicated questions of law and facts involved therein and the suit, out of which the instant regular second appeal has emanated, was based on a cause of action different from the one involved in the earlier suit which was ordered to abate in appeal.
No other or further point has been urged on either side.
The appeal was filed without indicating what substantial questions of law it involves but during the pendency of the appeal learned counsel for the appellants has placed on the file following questions claiming these to be substantial questions of law involved in this appeal. These are:
"1. Whether a warrant of possession of land under mortgage can be issued when there is no order of redemption either by the civil or revenue court?
2. Whether the collector can entertain a second application for redemption of mortgage for whatsoever reason the Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -9- first application was dismissed by him? and
3. Whether the civil court in a suit for declaration only with no prayer for possession can order the collector to give possession to the plaintiff in execution of a declaratory decree without following the procedure prescribed by law?"
Facts are not in dispute. There is also no dispute that the mortgagor sought redemption within limitation. It is also not in dispute that first petition (File No. 03 dated 20.02.1965) for redemption of the land in suit was filed under Section 4 of the 1913 Act. In a petition under Section 4, the petitioner has to state the particulars of the land mortgaged; amount of mortgage and whether the same has been deposited with the Collector. Section 5 requires that on such a petition being presented and mortgage money having been deposited, the Collector has to issue to the mortgagee a summons to appear on a date to be specified therein. As per Section 8, the Collector is required to inquire from the mortgagee whether he admits that the petitioner is entitled to redeem and whether he is willing to accept the sum in deposit in full discharge of the mortgage debt and in case mortgage is with possession, whether he is willing to surrender the possession of the mortgaged property. If the mortgagee replies in affirmative, the Collector is to pass an order as laid down in section 6(a), (b), (c) and (d) of the 1913 Act. In case the mortgagee admits the petitioner's title to redeem but demands payment of a sum larger than that of deposit, the Collector is to inquire from the petitioner whether he is Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -10- willing to pay such larger sum and in case he answers in affirmative, the Collector shall fix a period not exceeding 30 days within which the petitioner is required to deposit the difference and in case the petitioner makes such a deposit, the Collector is to make order as laid down in Section 6(a), (b), (c) and
(d) of the 1913 Act. In case the petitioner fails to make such deposit within the time fixed, the Collector is to dismiss the petition. According to Section 9 of the 1913 Act, in case the mortgagee raises objection on any ground other than the amount of deposit or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector can either dismiss the petition or make a summary inquiry regarding the objection raised by the mortgagee or regarding the sum due. Thus, Section 9 of the 1913 Act contemplates an inquiry by the Collector with regard to the objection raised by the mortgagee. Section 10 mandates that in case, on inquiry the Collector is of the opinion that it bars redemption or there is a sufficient cause for not proceeding further with the petition, he shall dismiss the petition. As per Section 11, if, on inquiry regarding the sum due the Collector is of opinion that the sum deposited is the sum rightly due under the mortgage, he shall, unless he dismisses the petition under Section 10, make an order as laid down in Section 6(a), (b), (c) and (d) of the 1913 Act, but, if he is of the opinion that a sum larger than the sum deposited should be deposited by the petitioner, he shall, unless he dismisses the petition under Section 10, fix a period, not exceeding 30 days, within which the petitioner shall deposit the difference, together with any further sum which may be due on account of interest till the date of the deposit, and if the Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -11- petitioner makes such deposit within that period or such period, not exceeding 30 days, as the Collector may fix, the Collector shall make an order as laid down in Section 6(a), (b), (c) and (d) of the 1913 Act and if the petitioner fails to make such deposit within the period fixed, the Collector has to dismiss the petition. However, Section 12 permits a party aggrieved by an order made under Sections 6, 7, 8, 9, 10, or 11, to institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order has to be conclusive. The above cited provisions, indisputably, contemplate an inquiry by the Collector. However, a perusal of order dated 11.03.1966, Exhibit D1, reveals that though the petitioner had deposited an amount of Rs. 1224/- as the sum due but the Collector did not apply his mind to the merits of the petition for redemption and did not hold an inquiry but rejected it saying that it involved complicated questions of fact and law. Such a decision cannot be construed to be as a decision on merits. Predecessors-in-interest of the respondents, therefore, knocked the door of civil court vide Civil Suit No. 111 of 12.05.1966 and were successful in obtaining a declaration that they were entitled to redeem the land in suit vide judgment and decree dated 07.05.1968, Exhibit D2, which was affirmed by judgment and decree dated 22.07.197, Exhibit P10, passed in Civil Appeal No. 29 of 1968, and judgment and decree dated 20.01.1982, Exhibit P3, passed in Regular Second Appeal No. 1228 of 1970. It may be added here that the aforesaid suit though was designated as a suit for declaration but, in effect, it was a suit for redemption and right of the mortgagers was upheld by this court. In these circumstances, the second Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -12- application made by the mortgagors was not hit by Section 13 of the 1913 Act because this Section bars any further application after dismissal of an application and as afore-stated order dated 11.03.1966, Exhibit D1, cannot be construed to be an order of dismissal of the application.
In Tundal (deceased) now Rep. by his legal heirs v. Munshi, 1995 (3) Recent Revenue Reports 408: 1995(3) PLR 14: 1995 PLJ 293, Khillu and others had filed a petition under Section 4 of the 1913 Act before Assistant Collector Ist Grade, exercising the powers of the Collector, wherein notice was issued to the respondents, parties adduced evidence in support of their respective contentions but the Collector, vide order dated 30.07.1974, after noticing the various objections/pleas, came to the conclusion that since sufficient evidence was not adduced, the petition could not be adjudicated upon and, accordingly, came to the conclusion that the petition, in the present form, could not succeed and dismissed it. The learned Single Judge of this Court, held as under:
"12. On carefully perusing the order of Collector dated 30.7.1974, I am of the view that the same is not on merit. The Collector has merely noticed the respective contentions/objections raised by the parties but has not cared to express his opinion in respect of these. In fact, till the concluding paragraph of the order, he has merely noticed the various objections and in concluding paragraph he has observed the present petition for redemption is not maintainable in the present form and is dismissed. Such a decision cannot be construed to be on merit."
A reference to a Full Bench decision of this Court in Chanan Singh versus Majo and another, 1976 PLR 726 : 1976 PLJ 411 : AIR 1976 Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -13- P&H 310 : 1976(2) ILR (Punjab) 558 : 1976 PLJ 411 should suffice to put at rest the question regarding maintainability of a second application under Section 4 of the 1913 Act. In this case it was ruled as under:
"17. That being so, the core of the matter here is whether an order of dismissal by the Collector on an application under section 4 of the Act, on the ground that it is premature, is within the scope of section 12 of the Act.
18. In seeking an answer to the aforementioned question, it is unnecessary to examine it in any detail or on principle because it is covered on all fours by the authoritative decision of the Full Bench in Tulsi Dass's case (Tulsi Dass v. Diala Ram, AIR 1943 Lahore 176). In that case owing to an earlier conflict of authority, two questions were referred to the Full Bench which were formulated in the following terms :-
"1. Whether an application made under section 4 of the Act for redemption of a mortgage cannot be treated as an application under the Act, if it is rejected or dismissed by the Collector on the ground that it is premature ?
3. Whether the orders contemplated under section 12 of the Act are confined to those orders only which are made on the merits of the case or cover all orders irrespective of the fact whether they dispose of any question on the merits or not ?"
As is manifest, question No. 1 above is identical with the issue arising in the present appeal. On this point, all the three learned Judges of the Full Bench were unanimous in their view that the dismissal of such an application on the ground of the same being premature was not hit by the stringent provisions of section 12 of the Act and there was thus no bar to a suit being brought for redemption of the mortgage under the general law. I am entirely in agreement with this view and indeed the Full Bench judgment is binding on us or in any case is of great persuasive force." This matter is also concluded by the decision of the Hon'ble Supreme Court in Sheolal and others v. Sultan and others, AIR 1971 Supreme Court 93. This was a case before the Limitation Act came to be amended and Article 14 of the Old Limitation Act was applicable which is equivalent to Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -14- Article 100 of the Limitation Act. The Collector had dismissed application for redemption of the mortgagee stating that complicated questions of law were involved and the mortgagor was relegated to civil suit. It was held that such an order did not fall under Section 9 of the Redemption of Mortgages (Punjab) Act to attract the provisions of Article 14 of the Limitation Act. It was held as under :
"An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside. The order of the Assistant Collector merely declared the rights of the plaintiff under the common law; it did not bar the claim to relief for redemption in civil suit, and on that account it was not an order which was required to be set aside."
In Gurmukh Singh versus Sarwan Singh, 1991(2)RRR 385:1991 PLJ 492:AIR 1991 P&H 281: 1992(2) LLR 137, one Sarwan Singh had filed a suit for possession by redemption of 6 Kanals 7 Marlas of land, claiming to be co-sharer having purchased 1 Kanal 17 Marlas of land from other co-sharers, Amar Chand and Faqiria sons of Ram Chand son of Ishar. Moola Singh, another son of Ishar had mortgaged land measuring 6 Kanals 7 Marlas on January 28, 1958 in favour of Jawala and Gurmukh Singh, his brother. Sarwan Singh filed an application before the Collector for redemption of 1 Kanal 17 Marlas of land which he had purchased. The Collector allowed redemption vide his order dated June 01, 1977. A civil suit was filed challenging the aforesaid order of the Collector by some of the defendants. The suit was dismissed. Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -15- However, on appeal the suit was decreed and order of the Collector was held to be bad in law as partial redemption could not be allowed. This led Sarwan Singh, plaintiff, to file another application before the Collector for redemption of the entire mortgaged land measuring 6 Kanals 7 Marlas. This application was filed on February 23, 1983, and was dismissed by the Collector on July 31, 1984. Sarwan Singh, thus, filed the present suit challenging aforesaid order of the Collector and claiming redemption of the entire land, which was mortgaged, measuring 6 Kanal 17 Marlas claiming himself to be a co-sharer by purchase of 1 Kanal 17 Marlas of land, as stated above. The trial Court dismissed the suit whereas the lower appellate Court decreed it. The learned Single Judge of this Court, after noticing the provisions of Sections 12 and 13 of the 1913 Act, resolved the riddle in the manner as follows:
"This provision authorises a person whose application in respect of the mortgage has been dismissed by the Collector to establish his right in a civil Court by instituting a civil suit. Subject to the result of the suit, the orders passed by the Collector under Sections 6 to 11 of the Act are to remain as conclusive. Reading of the aforesaid two provisions makes it abundantly clear that two remedies are available in respect of the mortgages : firstly to establish right of redemption under the provisions of aforesaid Act and if the decision of the Collector is not favourable to establish the right by filing a suit. Of course, when first application is dismissed by the Collector, second application will not be maintainable as provided under section 13 of the Act. However, when first application was allowed and the opposite party had challenged the said order and on technical grounds the order not implemented that will not extinguish the mortgagor's rights to redeem the mortgage. Learned counsel for the appellants referred to the decision of the Full Bench of the Lahore High Court in Tulsi Das alias Nirmal Das and others v. Diala Ram, AIR 1943 Lahore 176. That was a case where a petition under Section 4 of the Act was dismissed as pre-mature and it was Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -16- held that Section 13 barred another application. On facts ratio of the decision is not applicable to the case in hand. The only order of the Collector which rejected the prayer for redemption is of July 31, 1984 and Sarwan Singh plaintiff was well within his rights to challenge the same and establish his right of redemption by filing the suit. Obviously, the earlier order of the Collector which was in favour of Sarwan Singh was not to be challenged by him. Either by allowing application of Sarwan Singh to redeem 1K 17M land or by decretal of the suit by Gurmukh Singh and others challenging the aforesaid order of the Collector, mortgage in any manner was(not) extinguished. Right to redeem the mortgage could only be extinguished by efflux of time by any other provision in any statute, such as the provisions of the Redemption of Mortgages (Punjab) Act. The provisions of this Act are, therefore, to be strictly construed. It was held by the Privy Council in Raghunath Singh and others v. Mt. Hansraj Kanwar and others, AIR 1934 Privy Council 205 that the right to redeem is a right conferred upon the mortgagor by enactment of which he can only be deprived by means and in manner enacted for that purpose and strictly complied with. That was a case where a provision was made in the decree in a suit for redemption that in case of default by the plaintiff for payment, his case was to stand as dismissed. It was held that such an order could not be construed as meaning that the plaintiff was to be debarred of all rights to redeem or that the decree was an order of a Court extinguishing the right to redeem within the provisions of Section 60 of the Transfer of Property Act. The second suit for redemption in such a case was held to be maintainable. Further clarifying, it was observed that unless it could be said that a decree involved a decision that mortgagor's right to redeem was extinguished, it could not operate by way of res judicata so as to prevent the Courts under Section 11 of the Civil Procedure Code from trying a second redemption suit. Several cases have been cited which were discussed by the Full Bench of this Court in Chanan Singh v. Smt. Majo and another, 1976 PLR 726 which need not be discussed in detail. The Full Bench, in a case where application filed under the Redemption of Mortgages (Punjab) Act was held to be premature, held that the bar of Section 12 of the Act did not apply to the suit being brought for redemption of the mortgage under the general law. Relying upon the aforesaid Full Bench decision in Nikka Singh and others v. Darshan Singh and others, 1984 RRR 231 (P&H) : 1984 Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -17- PLJ 33 wherein the Collector simply refused to proceed with' the application filed before him without pronouncing any right on the mortgagor, it was held that remedy of suit for redemption under the general law was not barred. Section 12 of the Redemption of Mortgages (Punjab) Act was not attracted."
Therefore, after having established their right to redeem the land in suit upto this Court, the mortgagors were well within their rights to approach the Collector for possession of the land in suit by way of redemption and the Collector was empowered, or say, obliged, to pass appropriate orders thereon as per law. Bar of Section 13 of the 1913 Act was not attracted. However, order dated 19.10.1982, Exhibit P2, whereby the Collector had ordered redemption of the land in suit and had issued warrants of possession, on being challenged by the mortgagees, came to be set aside by learned Additional Senior Subordinate Judge, Faridkot vide judgment and decree dated 22.02.1985, Exhibit P12, and Civil Appeal No. 47 of 1985 brought by the mortgagors was abated vide order dated 20.07.1987, Exhibit P11, as one of the mortgagors had died during the pendency of the appeal and his legal representatives could not be brought on record within the period of limitation. SAO No. 71 of 1987, challenging order dated 20.07.1987, Exhibit P11, was dismissed vide order dated 14.11.2007 and Special Leave to Appeal Petition preferred against order dated 14.11.2007 is also stated to have been dismissed. In the meantime, the mortgagors moved another application on 07.01.1985, Exhibit P18, which did not find favour with the Collector and was dismissed vide order dated 19.02.1988, Exhibit P16. Mortgagors had lost before the learned trial court but have succeeded in appeal. Mortgagees' challenge to the judgment and decree passed in appeal is based on Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -18- Rule 9(1) of Order XXII of the Code of Civil Procedure, which reads as under:
"Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action."
A close look on Rule 9(1) of Order XXII of the Code of Civil Procedure reveals that it bars a fresh suit on the same cause of action. To put it straight, to apply the bar created by Rule 9(1) of Order XXII of the Code of Civil Procedure there should be a fresh or further suit and cause of action involved in that fresh or further suit should be the same as in the earlier suit. In the instant case, no fresh suit has been filed by the respondents nor is the suit under adjudication based on the same cause of action as was the earlier suit. Rather, to the contrary, the earlier suit was brought by the appellants (and not by the respondents) to challenge order dated 19.10.1982, Exhibit P2, whereas the instant suit brought by the respondents, has emanated from order dated 19.02.1988, Exhibit P16, whereby the Collector has refused to deliver possession of the land in suit to them, saying that earlier order passed by the Collector on 19.10.1982 ordering delivery of possession to the respondents had been set aside by the civil court vide judgment and decree dated 22.02.1985, Exhibit P12, and appeal against this was dismissed by the learned Additional District Judge. The Collector, while returning this observation, lost sight of the fact that judgment and decree dated 22.02.1985, Exhibit P12, did not have the effect of holding that the mortgage stood extinguished in terms of Section 60 of the Transfer of Property Act, 1882; it was based on erroneous assumption that order dated 19.10.1982, Exhibit P2, emanated from a second application which was barred by Section 13 of 1913 Act and appeal against this judgment and Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -19- decree was not dismissed on merits, rather, it was ordered to abate. As has been held in the earlier part of this judgment, first application brought by the mortgagors was not decided in terms of Sections 6 to 11 of the 1913 Act and, as such, Section 13 of 1913 Act was not attracted. Section 60 of the Transfer of Property Act, 1882 reads as under:
"60. Right of mortgagor to redeem: At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
PROVIDED that the right conferred by this section has not been extinguished by the act of the parties or by decree of a court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property-Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor."Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -20-
In Raghunath Singh v. Hansraj Kunwar, 36 Bom. L.R. 1189, a decree for redemption was passed in 1896, and it provided that, if the mortgagor failed to pay in accordance with the terms of that decree, his case would stand dismissed. The mortgagor did not pay the amount of the decree, and the mortgagee continued in possession of the mortgaged property. In 1924 the mortgagor filed a fresh suit to redeem that property. Mortgagees put forth three contentions, namely the suit, though in form a redemption suit, was in reality an application to enforce an old decree, and that the execution of that decree was barred by limitation; decision in the former suit operated as res judicata under Section 11; and no payment having been made under the old decree, the former suit stood dismissed, with the result that the mortgagor's right to redeem stood extinguished under Section 60 of the Transfer of Property Act. The Privy Council noted that in the first suit the issues were (1) whether the mortgagors were then entitled to redeem; and (2) the amount then to be paid if redemption then took place; and the issues in the subsequent suit were (1) whether the right to redeem existed at the time of the suit, and (2) the amount to be paid if redemption took place at the time of the subsequent suit. The Privy Council further pointed out that unless they were satisfied that the decree in the first suit extinguished the right to redeem, no question of res judicata would arise. Therefore, their Lordships construed the decree in order to determine whether under the provisions of that decree, the right to redeem had been extinguished, and having construed that decree, in their opinion, the right to redeem was not extinguished; and, therefore, no question of res judicata arose. Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -21- The following passage from the judgment of the Privy Council is very pertinent (p. 369):
"The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is Section 60; but in their Lordships' view the old decree cannot properly be construed as doing that which it does not purport to do namely, as extinguishing the right to redeem."
In Rajaram Vithal Sutar v. Ramchandra Pandu, AIR 1948 (Bombay) 226 : 1948(50) BomLR 45, one Gamabai had executed a mortgage on July 24, 1895, in favour of one Khandu. In 1903 Khandu filed a suit against Gamabai and her husband. This suit was filed on the allegation that the property had been sold to Khandu by Gamabai. Gamabai contended in that suit that, although in form it was a sale-deed, the document was really a mortgage. The Court accepted the contention of Gamabai, and a decree was passed on June 16, 1904, by which Gamabai was declared to be entitled to retain possession of the property, if she paid a specified sum of interest to Khandu. In default, Khandu was to get possession of the property as mortgagee. In August 1904 Gamabai filed a suit for redemption. While the suit was pending, Gamabai died, and her heirs were not brought on record, with the result that the suit abated in June 1905. The present suit was filed by the grandsons of Gamabai for redemption, and the only question that arose before the Bombay High Court in second appeal was, whether the second suit was barred by reason of the fact that the earlier suits for redemption had abated in June 1905. A Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -22- Division Bench of Bombay High Court ruled:
"3. Now, under Order 22, Rule 9, "where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action." It is contended by Mr. Shah that, inasmuch as both the suits were for redemption, they were on the same cause of action, and as the first suit had abated, the second suit does not lie.
4. Now, the Civil Procedure Code deals with procedure relating to all suits. There is a special law, which deals with rights of mortgagors and mortgagees, and that law is to be found in the Transfer of Property Act. Section 60 provides that a mortgagor has the right to redeem the mortgaged property after the principal money has become due, and the mortgagor either pays or tenders the amount due on the mortgage; and the proviso to that section states that this right continues so long as it has not been extinguished either by the act of the parties or by the decree of a Court. Before the Act was amended, the expression was "order of a Court" instead of "decree of a Court." Therefore, Section 60 confers the right to redeem upon the mortgagor, and also provides that that right is to continue until one or the other of the two eventualities mentioned in the section takes place : one, the act of the parties, and the other, an order or a decree of a Court which extinguishes that right. Now, it is perfectly clear that when the suit abated, there was no express order of the Court extinguishing the right of redemption. Can it be said that the mortgagor could not enforce that right, because the second suit was barred under Order 22, Rule 9? If the legislature in a piece of special legislation confers a particular right upon a party, it must intend that that right should be an enforceable right. Therefore, in our opinion, the general provisions of the Civil Procedure Code, as contained in Order 22, Rule 9, are to that extent overridden by the specific provisions of Section 60 of the Transfer of Property Act. So long as the relationship of mortgagor and mortgagee continues, and so long as the right to redeem has not been extinguished by a decree of the Court, or by the act of the parties, the mortgagor is entitled to go to a Court of law to enforce his right. Of course, the position with regard to limitation is different, because the Indian Limitation Act expressly provides that the period of limitation for redemption suits is sixty years.
11. Therefore, it is clear from this decision that the right of redemption cannot be taken away from the mortgagor, Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -23- except in the manner and to the extent provided by Section 60 of the Transfer of Property Act. We are of the opinion that the abatement of the suit is not a decree of the Court, which extinguishes the right of redemption. The procedural effect of Order 22, Rule 9, cannot override the express provisions of Section 60."
Nothing has been shown on behalf of the appellants to counter this view, which, even otherwise, seems to be based on sound and reasonable appreciation of the intent of Section 60 of the Transfer of Property Act, 1882. Therefore, view taken by the learned first appellate court that the mortgagors could revive the very first application, which was rejected by the Collector saying that he was unable to decide it in view of complicated questions of law and fact, and the Collector was obliged to deliver possession of the mortgaged land to them, is found to be correct and admitting of no interference.
Reference may also be made to a judgment of this Court in Tek Chand v. Ram Sarup, 1970 PLJ 274. In this case, in 1951, the respondents, Ram Sarup, Mam Chand, Sri Ram and Maha Singh had mortgaged the land covered by Khasra Nos. 1168 and 1181 in village Reht in Sonepat Tehsil, in favour of Tek Chand, Ganeshi Pirbhu and Dharam Chand for a sum of Rs.3810/-, with possession. In consequence of the consolidation proceedings in 1955, Khasra Nos. 87/14 and 88/9/1 were carved out in lieu of mortgaged land and mortgagees were put in possession. Ram Sarup was given the ownership of Khasra No. 87/14 and the other three mortgagors were granted ownership rights in Khasra No. 88/9/1. On 4th of May, 1957, Ram Sarup applied to the Collector for redemption of the land which had come to his share. This application was rejected on 28th of October, 1957, on the short ground that the Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -24- mortgage being one single transaction, there could be no partial redemption in respect of a portion of it. Ram Sarup then made a fresh application for redemption on 22nd January, 1958, and other mortgagors also joined him. But the application was rejected by the Collector on 14th of May, 1958 on the ground that the second application was not maintainable. The efforts of the mortgagors to redeem the land having failed before the Collector, a civil suit was brought on 13th of June, 1958, for a bare declaration that the orders passed by the Collector were erroneous. Only ground on which the suit was resisted related to the competence of the plaintiffs to bring the suit. Rejecting this plea, the Subordinate Judge decreed the suit on 17th of August, 1959. The appeal before the Senior Subordinate Judge preferred by the mortgagees-in-possession was unsuccessful and it was dismissed on 7th of December, 1959. The mortgagees came in second appeal to this Court and contended that Section 12 of the Act, on which reliance had been placed by the Courts below, was of no avail to the plaintiff-respondents. This Court, after noticing the provisions of Section 12 of the 1913 Act, dismissed the Regular Second Appeal by holding:
"5. Now, Sections 6, 7, 8, 9, 10 and 11 relate to the procedure in applications made by mortgagors for redemption. Section 6 is concerned with a situation when petitioner is absent and mortgagee is present; Section 7 deals with the procedure when procedure when petitioner is present and mortgagee is absent, while Section 8 is concerned with cases where both parties are in attendance and the Collector can make an order for redemption. Section 9 deals with the procedure in contentious cases, while Section 10 provides for an enquiry into objection raised by mortgagee. Section 11 is concerned with the enquiry regarding the sum which is actually due. As I have said before, the Act provides a speedy and summary disposal of redemption cases and it is obvious from the Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -25- purpose and tenor of Section 12 that an unsuccessful party in an application for redemption can institute a suit before a civil Court to establish his rights in respect of the mortgage. There can be no manner of doubt that the words "establish his rights in respect of the mortgage" can well apply to a suit for declaration. The lower appellate Court in its judgment referred to two Bench decisions of the Lahore High Court where a similar view was taken. In Nazam Din v. Daulat Ram, AIR 1921 Lahore 132, a judgment of Wilberforce and Abdul Qadir, JJ., it was said that :
"A mortgagee, who has been illegally dispossessed by the Collector, may be restored to the position which he previously occupied; and the provisions of Section 12 are sufficiently wide to allow a civil Court to right a wrong done by the Collector in the summary proceedings, and if necessary to restore possession of the land to the mortgagee."
6. The contention of Mr. Soni that a mere suit for declaration without any relief for possession when such relief could be asked for is incompetent may be the law in ordinary suits but is certainly not applicable to the summary procedure of the Act.
7. In Niranjan Singh v. Charan Dass, AIR 1922 Lahore 363, the other Bench decision on which reliance has been placed, it was held by Scott-Smith and Campbell, JJ., that a "a suit for a declaration only that the mortgagor is not entitled to redeem can be instituted under Section 12 though the mortgagor has obtained possession." It may be that the mortgagors may have to institute a suit for actual possession. Section 12 of the Act contemplates a suit for establishment of rights in respect of a mortgage and indeed the suit in the instant case is one for declaration that the orders of the Collector passed on 28th of October, 1957, and 14th May, 1958, refusing to redeem the mortgage in dispute are illegal and not binding on the mortgagors, and further that the plaintiffs are entitled to redeem the mortgage land in dispute on payment of Rs. 3810/-, and get possession of the same. The decree of the trial Judge has granted a declaration with regard to the orders of the Collector that they are not binding on the plaintiffs, and further that they are entitled to redeem the said mortgage on payment of Rs. 3810/-. There is no direction with regard to possession in the decree and the relief granted by the trial Judge appears to be in conformity with the requirements of the Section. The decree as granted by the trial Judge has been affirmed in appeal by the lower Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -26- appellate Court. The submission of Mr. Soni that the decree in so far as it grants possession of the suit property is beyond the scope of Section 12 does not really arise. The decree is only for declaration that the impugned orders are ineffective and inoperative and that the plaintiffs are entitled to redeem the land on payment of Rs. 3810/-. There is thus no reason to make any modification in the decree which will accordingly be affirmed and the appeal dismissed. As there is no representation on behalf of the respondents, I make no order as to costs of this appeal." In Ram Krishna Thakur v. Om Prakash Thakur, 2010(1) PLJR 293 Civil Revision was directed against the order dated 19.7.2005 passed in Partition Suit No. 209 of 2003 by the Sub Judge-I, West Champaran at Bettiah, whereby he had dismissed the suit being not maintainable in view of the provisions as contained in Order 22 Rule 9 and Order 14 Rule 2 of the Code of Civil Procedure (hereinafter referred to as "the Code") by holding that the suit was not maintainable on the ground of its being barred under the provisions of Order 22 Rule 9 and Order 14 Rule 2 of the Code on account of the fact that for self same properties Partition Suit No. 141/71 was brought by the father of the plaintiff against the branches of defendants and the suit was dismissed as abated on 28.5.1975. Since no appeal was preferred against that order, the same having attained finality, the subsequent Partition Suit No. 209/03 filed for the same cause of action, would not be maintainable as per the provisions under Order 22 Rule 9 of the Code. In this case the plaintiff-appellant-petitioner had filed Partition Suit No. 209 of 2003 before the Sub Judge, West Champaran at Bettiah impleading the opposite parties as defendants for partition of the suit lands to the extent of ½ share in favour of the plaintiff-petitioner along with other consequential reliefs. Defendants-respondents-opposite parties appeared Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -27- and filed written statement. On 4.8.2004, the opposite parties filed a petition under Order 22 Rule 9 and Order 14 Rule 2 of the Code raising the question of maintainability of the suit on the ground that the father of petitioner had also filed Partition Suit No. 141/71 against the branches of Late Manorath Thakur with respect to the same properties but the suit had been dismissed as abated on 28.5.1975 due to the non-impleadment of legal representatives of the deceased defendant Raghunath Thakur within the prescribed period of limitation. Thus, in the light of the provisions under Order 22 Rule 9 of the Code, it was urged by the opposite parties, that the suit was not maintainable as the order of abatement had become final since no appeal was preferred thereto and filing of fresh suit on same cause of action was barred. The plaintiff-petitioner raised objection thereto and submitted that though the Partition Suit No. 141 of 1971 stood abated on account of non-impleadment of legal representatives of Late Raghunath Thakur, still the present Partition Suit could not be said to be barred under the said provision of law as partition is recurring cause of action so long the properties remain joint. Patna High Court accepted the Civil Revision by holding:
"16. In view of the above discussions, I am of the opinion that though a subsequent suit for same cause of action after abatement and dismissal of the previous one would not be maintainable in view of the provisions as contained in Rule 9 of Order 22 of the Code, however, since the matter of partition is a recurring cause of action till the property in dispute is not completely partitioned, the subsequent partition suit filed by the son of the plaintiff of earlier suit, Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -28- after abatement of the previous one, cannot be held to be non- maintainable. Thus, the subsequent Partition Suit No. 209/2003 could be maintained by the plaintiff - petitioner and the court below has committed serious jurisdictional error in holding that the subsequent partition suit was not maintainable."
From the above cited judgments it is manifest that a mortgage can be extinguished either in terms of the statute or by the act of the parties to the mortgage and after rejection of application for redemption by the Collector, the mortgagor can seek a declaration of his right to redeem and such a decree is executable. It is nobody's case that the parties to the mortgage extinguished it or that it was held to be extinguished by the civil court or by this Court. That being so, and in view of the saying, "once a mortgagee always a mortagee" the mortgage cannot be said to have extinguished by abatement of the appeal brought by the mortgagors against judgment and decree passed by the civil court in a suit brought by the mortgagees to challenge action of the Collector in ordering delivery of possession of the mortgaged property to the mortgagors, the application made by the mortgagors before the Collector praying for taking up the application which was rejected on technical grounds and to deliver possession of the land in suit to them could not be brushed aside in the manner it has been. Questions posed on behalf of the appellants are answered accordingly and the findings recorded by the learned District Judge, Faridkot vide judgment and decree dated 14.05.1991 are affirmed.
Resultantly, the appeal fails and is dismissed with costs, Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh R.S.A No.2106 of 1994 -29- throughout.
Pending interlocutory applications, if any, are rendered infructuous and are disposed of as such.
(MAHAVIR S. CHAUHAN) JUDGE 20.12.2013 adhikari Virender Singh Adhikari 2014.01.09 19:27 I attest to the accuracy and integrity of this document High Court Chandigarh