CHANDRASHEKAR HEBBAR Vs. SHEENAPPA SHETTY

JUDGEMENT

(1.) The appeal has been admitted on the following questions of law, namely.- Whether in facts and circumstances of the case, the Courts below were justified in dismissing the suit on the ground the suit is barred by limitation? Whether the Appellate Court was justified in denying the relief on the ground that the suit is bared by limitation, having held, the debt is wiped out under the provisions of the Karnataka Debt Relief Act, 1980 and the plaintiff is entitled for redemption of the mortgaged property?

(2.) To answer these and either questions of law that arise for consideration, it is in order to state the facts of the case. The appellant was plaintiff before the Trial Court and had filed a suit for redemption of a usufructory mortgage executed by his father in favour of the respondent, who was the defendant, on 30-10-1953 in respect of suit schedule A property. The mortgage amount was Rs. 1,200/-. It was agreed that the debt was to be discharged at the end of any Hindu year Hevilambi and the mortgage could be redeemed. Though the mortgage was termed as a usufructory mortgage, the mortgagors claimed as continuing in actual possession of the suit property, but were paying the annual income arising from the land to the respondent. The plaintiffs father is said to have died in the year 1984. The plaintiff having succeeded to the said property, had preferred a suit, to contend that the father of the plaintiff was a debtor as defined under the Karnataka Debt Relief Act, 1980 (hereinafter referred to as the Act for brevity). He had no other properties except suit schedule A property. Therefore the debt comprised in the usufructory mortgage stood discharged and relinquished as per the Act and therefore, the plaintiff was entitled to seek possession by operation of law. Though the father of the plaintiff had been demanding redemption, the defendant having refused, the suit was preferred. The defendants contested the suit and contended that the usufructory mortgage was admitted, but it was denied that the plaintiff had continued in possession and the defendant claimed that the defendant was in possession and enjoyment under the mortgage. It was denied that the father of the plaintiff was a debtor as defined under the Act and the question of mortgage having been discharged by operation of law was denied. It was also contended that the suit was barred by limitation. Therefore, the suit for redemption of mortgage was not maintainable. It is asserted that the income of the plaintiff was more than Rs. 15,000/- and hence, the plaintiff could not prosecute the suit on the ground that even if his father was a debtor the plaintiff could not claim the benefit of the Act and therefore was not entitled to seek any such relief. The Trial Court negatived the case of the plaintiff and held that in terms of Section 5 of the Act, the plaintiff or his father could have approached the jurisdictional Assistant Commissioner to exercise a right under the Act on or before 31-12-1981 and held that the plaintiff having approached the Court after a considerable lapse of time, the Trial Court opined that it had no jurisdiction to consider the case of the plaintiff. Secondly, the Trial Court has also held that since the plaintiff had not obtained an order from the jurisdictional Assistant Commissioner under Section 5 of the Act, he could not be permitted to claim the benefit of the Act. On the question of limitation, the Trial Court held that though the plaintiff had contended that the due date for redemption of mortgage as per Ex. P. 1 was phalgana 30th of any Hindu year after Hevilambi year, the defendant having produced the Panchangam of Hevilambi Samvatsara, the Trial Court has found that the Samvatsara ended on 30th March, 1958 and therefore, it was held that the Samvatsara would not fall in the year 1960, as contended by the plaintiff and the plaintiff having demanded redemption on 24-9-1989 and the suit having been filed on 30-9-1989, the suit was clearly barred in terms of Article 61 of the Limitation Act, 1963, which prescribes a period of limitation of 30 years to redeem or recover possession of immoveable property mortgaged and since the right to redeem or recover possession accrues when the right to redeem or to recover possession accrues, which was as on 30-3-1958, the suit ought to have been filed on or before 30-3-1988. The plaintiff had challenged the same by way of an appeal before the First Appellate Court. The First Appellate Court, in turn, held that the plaintiff was entitled to redemption of mortgage without payment of the mortgage amount with reference to the provisions of the Act and affirmed the finding of the Trial Court that the plaintiff was not in possession of the mortgaged property as claimed but however, on the ground of limitation, affirmed the finding of the Trial Court that the suit was barred by limitation. It is this which is sought to be challenged in the present appeal.

(3.) The Counsel for the appellant would seek to contend that the mortgage created by the appellant is not denied. The same was created by the father of the appellant. The father having died, the appellant has prosecuted the suit as a legal representative of the mortgagor. It was therefore relevant as to whether the debtor namely, the father of the appellant was covered under the provisions of the Act. While it is a fact that the plaintiff-appellant had not chosen to approach the Competent Authority prescribed under the Act to seek the relief that was available under the Act, there was no issue as to whether the appellant was precluded from approaching the Civil Court. The only issue on which the First Appellate Court has affirmed the judgment of the Trial Court is on the ground of limitation. The Counsel would contend at length and would seek to interpret the terms of the mortgage deed, to assert that the right to seek redemption of mortgage actually accrued in the year 1959 and not 1958 and that the suit was in time. Since under Article 61(a), the right to redeem and recover possession of the property accrued in 1959 and 30 years period of limitation would have expired in the year 1989 and therefore, the Courts below were not justified in dismissing the suit on the ground of limitation. The Counsel would seek to place on a judgment in Ghouse Mohaddin v Sub-Divisional Magistrate, Belgaum and Another (1980(1) Kar.L.J.171) and also in Sita Ram Singh v Gaya Prasad (AIR 1953 All. 620).