SITA RAM Vs. THE DISTRICT JUDGE AND ANOTHER

JUDGEMENT

(1.) The petitioner filed a petition under Section 8 of the Bengal Land (Redemption and Foreclosure) Regulation, 1806 (hereinafter referred to as the "Regulation"), for foreclosure of mortgage of land measuring 08 Kanals 00 Marlas, situated within the revenue estate of village Jaurasi Saraf Khas, Tehsil Samalkha, District Panipat, alleging that the respondent No. 2 had mortgaged the aforesaid land for a sum of Rs. 1,00,000/- vide mortgage deed bearing Vasika No. 86 dated 21.04.1997 and delivered the possession. It is alleged that the land was conditionally mortgaged for the period w.e.f. 21.04.1997 to 31.12.1998; the mortgage money was to be returned by the mortgagor by 31.12.1998 if the land was to be got redeemed; in case the mortgage money was not paid by due date, the mortgage was to be considered as absolute sale and the petitioner was entitled to become owner of the mortgaged land by execution of sale deed in his favour; and the petitioner-mortgagee was entitled to cultivate the mortgaged land in lieu of payment of interest. The petitioner alleged that he is still in possession of the mortgaged land and respondent No. 2 failed to make the payment within the stipulated time. Since the parties were related to each other and respondent No. 2 was in need of money, he again borrowed an amount of Rs. 50,000/- on 10.12.2001 and Rs. 5,000/- on 18.01.2002 and executed a writing on a stamp paper agreeing that the borrowed money would be used for execution of the sale deed. Thus, the total money payable was Rs. 1,55,000/-. The case set up by the respondent No. 2 was that he had already paid the total mortgage money of Rs. 1,00,000/- in the year 1998 to the petitioner who had handed over possession of the land and assured that the land would be redeemed in due course. Due to the close relationship he believed him, but in the year 2010, he came to know that the entry regarding redemption of the land was not incorporated in the revenue record. He then filed an application for redemption of the land in the Court of Sub Divisional Magistrate/Collector, Samalkha on 21.07.2010 and deposited the mortgage money in the said petition as per order of the Revenue Court.

(2.) On the pleadings of the parties, issues were framed. Both the parties led their oral as well as documentary evidence. The Civil Court relied upon certified copy of the petition (Ex. R1) for redemption of mortgage filed by the respondent No. 2 before the SDM/Collector, Samalkha dated 21.07.2010 and the fact that he had deposited the mortgage money in the treasury vide challan Ex. R2 dated 06.09.2010. On this score alone, the Civil Court found that since the mortgage money has already been deposited on 06.09.2010, the petitioner cannot claim foreclosure by filing a petition on 16.09.2010. In view of Section 8 of the Regulation in which it is provided that the Court, after receiving the petition filed by the mortgagee would ask the mortgagor to redeem the property in the manner provided for within one year from the date of notification and in case it is not done, the mortgage is foreclosed and the conditional sale will become conclusive.

(3.) Counsel for the petitioner has submitted that the learned Civil Court has erred in passing the impugned order because till date no money has been received by the petitioner and the case filed by the respondent No. 2 before the SDM/Collector, Samalkha was dismissed in default on 20.01.2011. He has further submitted that the SDM/Collector, Samalkha, who had no pecuniary jurisdiction of an amount of more than Rs. 5,000/-, could not have heard the petition filed by the respondent No. 2.