HARBANS SINGH Vs. GURAN DITTA SINGH

JUDGEMENT

(1.) The appellants are mortgagees. The respondents are the heirs of Kala Singh, the mortgagor. Kala Singh executed three mortgages in favour of the appellants Resham Singh, Jaswant Singh and Harbans Singh on September 17, 196 2/06/1961 and 31/05/1962 respectively hypothecating the agricultural lands of 16 kanals 16 marias in each of the first two mortgages and 16 kanals in the third mortgage. The mortgagor filed an application under S. 4 of the Redemption of Mortgages (Punjab) Act, 2 of 1913, for short 'the Act'. He deposited a sum of Rs. 10. 00 in each mortgage and sought redemption of the mortgages. Ultimately the parties compromised and the mortgagor agreed to pay the balance of Rs. 840. 00 to each mortgagee within a month from 1/05/1964. The Collector passed the order on compromise under S. 11 thereof on 3/02/1964. He committed default in the payment thereof. "the petitions were dismissed. He filed separate suits against each mortgagee for redemption within one year under S. 12 of the Act on 12/06/1964. Pending suits he died. Thereafter the suits were dismissed. After obtaining mutation of their names in the revenue records the respondents filed separate suits for redemption of the mortgagesbut beyond one year as contemplated under S. 12 read with Article 14 of the Limitation Act, 1908. The suits were dismissed by the trial court and were confirmed by the first appellate court and by the High court in second appeals. But the division bench under clause (10 of the Letter of Patent allowed the appeals and set aside the judgments and decrees of the courts below and granted decree of redemption in terms of the prayer by judgment dated 9/04/1974. Assailing the legality thereof the appeals have been filed after obtaining leave under Article 136 of the Constitution. Since common questions of facts and law arise for decision in these appeals, they are disposed of by a common judgment.

(2.) The only question that was argued before the High court and reiterated in this court is whether the suits are barred by limitation. The contention of Shri Mehta, the learned counsel for the appellants is that the order passed by the Collector under S. 12 of the Act is conclusive between the partics unless the suits are laid under Article 14 of the Limitation Act within one year from the date of the order. Admittedly, the present suits have been filed beyond such limitation of one year. The High court committed a grave error of law in applying the provisions of S. 60 of the Transfer of Property Act and the ratio of the Privy council in Raghunath Singh v. Mt. Hansraj Kanwar. He contends that the Act provides a right and remedy to the mortgagor and mortgagees. S. 12 of the Act makes the order conclusive and binding and S. 13 bars second application in that regard unless the suit is filed within one year from the date of the order. It is not open to the civil court to go behind the order of the Collector and enlarge the limitation provided under Article 14 of the Limitation Act. All the provisions of Transfer of Property Act were not applicable to State of Punjab. Certain provisions relating to sale deeds and gifts were made applicable to the State of Punjab with effect from 1/04/1955 and to the area comprised in the erstwhile Pepsu Slate, w. e. f. 15/05/1957. As on the date when the suits were laid, S. 60 of the Transfer of Property Act did not apply to Punjab and so the ratio in Raghunath Singh case is inapplicable. The High court committed manifest error in applying S. 60. He cited decisions of Lahore High court in support of the contention that the suit shall be laid within one year which we would advert to at a later stage. Shri Dua, learned counsel for the respondents contended that the High court is justified in holding that the suit is not barred by limitation and the ratio of the decision cited by the appellants cannot be applied.

(3.) The Act is a beneficial legislation giving right to the mortgagors to seek redemption and restoration of possession of the hypolheca in summary proceedings before the revenue courts. The Act applies only tomortgage of land where the principal money secured under the mortgage does not exceed Rs. 5,000. 00 and the hypotheca does not exceed 50 acres of land. S. 4 gives right to the mortgagor and other persons entitled to sue for redemption at any time after the principal money becomes payable and before the suit for redemption is barred, by presenting a petition to the Collector for a direction i. e. mortgage be redeemed and erstwhile mortgagee shall put the mortgagor in possession of the hypotheca, after following the procedure in that behalf. S. 5 to 11 deal with the procedure. Under S. 11 if the Collector, on an enquiry, forms an opinion that the sum is righty due under the mortgage, he shall, unless he dismisses the petition under S. 10, make an order under S. 6. If the sum is found larger than the sum deposited, the mortgagor shall deposit the amount with any further sum that may be due on account of interest up to date of the deposit; on making deposit within the period or extended period not exceeding 30 days, thereafter, the Collector shall make an order under S. 6 thereto. On committing default by the mortgagor, the Collector shall dismiss the petition. S. 6 provides the relief of redemption; of restoration of possession to the mortgagor; delivery of the mortgage deed and payment of the mortgage money to the mortgagee. S. 12, which is material for the purpose of this case, reads thus: