KISHAN SINGH ETC Vs. AJAIB SINGH ETC

JUDGEMENT

(1.) The facts of the case giving rise to this appeal are that Ajit Singh son of Kishan Singh was owner of the land in question. He had effected mortgage of the same in favour of Ajaib Singh son of Mangal singh, defendant No. 1, on 6th April, 1961 for Rs. 2,000/-, the period of redemption having been postponed to 15 years. Another condition of the mortgage deed was that the expenses of consolidation shall be borne by the mortgagee to be paid by the mortgagor at the time of redemption. Thereafter Ajaib Singh sold the mortgagee rights to Amrik singh and Bakshish Singh, defendants No. 2 & 3. Ajit Singh mortgagor sought redemption of the land before the Collector through a petition under Section 4 of the Redemption of Mortgage Act (No. 2 of 1913), hereinafter referred to as 'the Act'. This petition was, however, dismissed by the Collector vide his order dated 29th April, 1967, Exhibit D.2. Thereafter Ajit Singh mortgagor sold the equity of redemption to the present plaintiff-appellants by sale-deed dated 3rd April, 1968, Exhibit P.2. The plaintiffs armed with the sale of equity of redemption by Ajit Singh instituted the present suit for redemption of the land. According to them the defendants enjoyed the unsufruct and were not entitled to any money. The suit was contested by the defendants. It was pleaded that the petition of Ajit Singh under Section 4 of the Act having been dismissed on 29th April, 1967, the present suit filed on 10th April, 1970 is not within time. On the pleadings of the parties the trial Court framed the following issues :-

(2.) On the material issues No. 3 and 5 the trial Court came to the conclusion that the suit is barred by limitation so far as it seeks to get rid of the Collector's order fixing additional amount of Rs. 1,000/- payable to the mortgage and the suit is not otherwise barred and under issue No. 5 it was decided that the order of the Assistant Collector dated 29th April, 1967 is final under Section 12 of the Act and operates as res judicata to the extent that the plaintiffs being successors in interest of Ajit Singh mortgagor, are precluded from questioning the validity of the order in so far as it held that an additional amount of Rs. 1,000/- was payable. But the suit for redemption is not barred by that order. Consequently the plaintiffs' suit was decreed on payment of Rs. 3,000/-. In appeal the learned Additional District Judge reversed this finding of the trial Court and found that the order of the Collector was not challenged within time prescribed and, therefore, under Section 12 of the Act the said order had become final and conclusive. The right of the present plaintiffs stood extinguished to claim redemption. As a result of these findings the decree of the trial Court was set aside and the plaintiff's suits was dismissed. Dissatisfied with the same the plaintiffs have come up in second appeal in this Court.

(3.) The only question to be decided in this appeal is whether the suit of the plaintiffs is within time or not, as the order of the Collector dismissing application under Section 4 of the Act was passed on 29th April, 1967. According to the learned counsel for the appellant, the order of the Collector Exhibit D.2, though passed under the Act was not in accordance with the provisions of Section 11 thereof, as no time for depositing the additional amount of Rs. 1,000/- was given by the Collector as contemplated therein. Thus according to the learned counsel, the plaintiffs were not under any legal obligations to get that order set aside as provided for under Section 12 of the Act. The argument proceeds that as a matter of fact the said order of the Collector was not an order either under Sections 6, 7, 8, 9, 10 or 11 of the Act, against which a suit is to be instituted under Section 12 of the Act. It was also contended that in any case the view of the trial Court that the plaintiffs are not entitled to challenge the order of the Collector with respect to the amount found due is correct and the plaintiffs are prepared to pay the amount of Rs. 3,000/- as determined by the Collector in his order Exhibit D.2. In support of his contention he referred to Ram Saran Dass v. Mula minor through Muluka,1923 AIR(Lah) 648 and Ishar Dass v. Arjan Singh and others, 1966 CurLJ 537.