Summary
Kala Singh predecessor of the respondents executed three mortgages hypothecating agricultural lands in favour of the appellants. The mortgagor filed an application under Section 4 of the Redemption of Mortgages (Punjab) Act 2 of 1913 and sought redemption of the mortgages, by paying Rs.10 in respect of each of the mortgage. The parties compromised regarding the amount payable and the Collector passed the order on compromise under Section 11 of the Act on Feb. 3, 1964. The mortgagor having committed default in making the payment within the time allowed for the purpose, the petitions were dismissed by the Collector. Thereupon the mortgagor filed three separate suits against each mortgagee for redemption within one year under Section 12 of the Act on June 12, 1964 and during the pendency of the suits, he having died the suits were dismissed. The respondents after obtaining mutation of their names in the revenue records, filed separate suits for redemption of the mortgages but beyond one year as contemplated under section 12 read with Art.14 of the Limitation Act 1908. The suits were dismissed by the trial court; which order was later affirmed both by the first appellate Court as also by the High Court. On a further appeal under the Letter Patent Act, the Division Bench of the High Court allowed the appeals and set aside the judgments and Decrees of the courts below and granted decree of redemption holding that the suits were not barred by limitation. The appellants have thus filed these appeals after obtaining special leave.
The appellants have reiterated their contention amongst others that the suits were barred by limitation and further the High Court was not right in applying the provisions of Section 60 of the Transfer of Property Act.Dismissing the appeals this Court, 615HELD: Section 13 creates a bar to make any further petition under the Act by the mortgagor or his successor in interest. A reading of Section 12 clearly postulates that the aggrieved party, be it mortgagor or mortgagee, against an order made under ss. 6 to 11 is empowered to institute a suit to establish his right in respect of the mortgage.Subject to the result of the suit, the order passed by the Collector shall be conclusive. Article 14 of the Limitation Act, 1908 which is equivalent to Article 100 of the Limitation Act, 1963, prescribes limitation of one year from the date of the decision or the order of the officer of the Government in his official capacity. Article 61 of the present Limitation Act provides 30 years for redemption and recovery of the possession of the hypotheca. The limitation of 30 years runs from the date when the right to redemption or posession accrues. Articles 105, 134 and 145 of the old Limitation Act would apply to the present litigation and the limitation is 60 years.(619A-C) The creation of mortgage is an act intervivos and not a statutory or common law right. The Act accords summary remedy and the default of compliance entails with dismissal of the application and section 13 prohibits second application for the self same relief. The remedy of civil suit for redemption available at common law, subject to limitation, is not taken away. Civil suit is not a declaratory suit, but one to redeem the mortgage and to recover possession of mortgage property. [621B-C]In the instant case, applying the principle of Justice, Equity and Good conscience though section 60 of the Transfer of Property Act, per se, did not apply, the principles in section 60 would apply. [622G]Though the application for redemption was dismissed under section 11 of the Act and and became conclusive under section 12, the mortgagor's right to redemption is not barred. A suit for redemption under section 60 of the Transfer of Property Act will be maintainable and civil court has jurisdiction to grant the decree of redemption.[622G]The suits for redemption are admittedly within limitation either under the old Limitation or under the new Limitation Act. The bar of section 12 of the Act does not oust the jurisdiction of the civil court to entertain and grant decree of redemption. [623B]Raghunath Singh & Ors. v. Mt. Hansraj Kanwar and Ors.A.I.R. 1934 P.C. 205; Tulsi Dass @ Nirmal Das Ors., v. diala Ram AIR 1943.616 Lah. 176; Sheo Lal & Ors. v. Sultan and Ors. [1970] 2 SCR 405; Mussammat Bhagwan Devi v. Mussammat Bunyadi Khanum[1902] Punjab Record 348; Safdar Ali v. Ghulam Mohi-ud-din Ors., [1915] (1) Punjab Record 406; Mian Nizam & Din Mohammed v. Lala Ramsukh Das, AIR 1938 Lah. 286; Milkha Singh v. Mst. Shankari & Ors., AIR (34) Lahore 1;Ms. Ram Gopal Dula Singh v. Sardar Gurbux Singh Jiwan Singh and Ors., AIR 1955 Punjab 215; Atma Singh & Gian Singh v. Mangal Singh and Ors., ILR 1957 Jan.-June (Vol. 10) 79; Ganesh Lal v. Jyoti Pershad, [1953] SCC 243, Suryanarayan v. Sri ramulu, [1913] (25) M L.J.P.16;-Referred to.Gangu & Ors., v. Maharaj Das & Ors., ILR 15 Lahore 380;Kaura v. Ram Chand, [1925] ILR 6, Lah.206-Distinguished.Bhagat Ram & Ors. v. Jamna Ram and Ors., [1928] 114 I.C.447-Not approved.See the full content of this document
Extract
Harbans Singh Etc. VS. Guran Ditta Singh Etc.
PETITIONER: HARBANS SINGH ETC.Vs.RESPONDENT: GURAN DITTA SINGH ETC.DATE OF JUDGMENT20/02/1991BENCH: RAMASWAMY, K.BENCH: RAMASWAMY, K.KASLIWAL, N.M. (J)CITATION: 1991 SCR (1) 614 1991 SCC (2) 523JT 1991 (2) 138 1991 SCALE (1)345ACT: Redemption of Mortgages (Punjab) Act 2 of 1913-Sections 4, 12 and 13-Application for redemption dismissed-Whether mortgagor's right of redemption barred-Whether suit for redemption under section 60-Transfer of Property Act maintainable and civil court has jurisdiction.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 12224 of 1975.From the Judgment and Orders dated 9.4.1974 of the Punjab & Haryana High Court in L.P.A. Nos. 213,214 and 215 of 1973.S.K. Mehta, Dhruv Mehta and Aman Vachher, for the Appellants.K.C. Dua for the Respondents.The Judgment of the Court was delivered by K. RAMASWAMY, J. The appellants are mortgagees. The respondents are the heirs of Kala Singh, the mortgagor....
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