PADMAWATI Vs. HANS RAJ

JUDGEMENT

(1.) Padmawati, defendant, has filed this petition under Section 115 of the Code of Civil Procedure, against the order of the learned Subordinate Judge Ist Class, Sultanpur Lodhi, dated 26th October, 1972, by which preliminary issue, "Whether the suit is within limitation ?" was decided in favour of the plaintiffs and against the defendant.

(2.) The only contention raised before me by Mr. Mittal, learned counsel for the petitioner, is that the learned Subordinate Judge exercised jurisdiction with material irregularity and illegality in deciding the question of limitation, as a preliminary issue. According to the learned counsel, even if the suit was filed within one year of the date of the order passed under Section 12 of the Punjab Redemption of Mortgages Act (hereinafter referred to as the Act), still it had to be determined whether the suit for possession by way of redemption was within limitation. In support of this contention, he has placed reliance on a decision of the Supreme Court in Shiv Lal and others v. Chet Ram and others, 1971 AIR(SC) 2342 .

(3.) After hearing the learned counsel for the parties, I am of the view that there is considerable force in the contention of the learned counsel for the petitioner. The trial Court fell in patent error in deciding the question of limitation in this manner. Even if the suit was filed within one year of the order that was passed under Section 12 of the Act, still it had to be found out after permitting the parties to lead evidence, if the mortgage of which redemption is sought, was created within 60 years of the date of the filing of the suit. The proceedings which were taken under Section 12 of the Act, would not enlarge the period of limitation. It had independently to be found out if on the date when the application under Section 12 of the Act was filed, the mortgage was still subsisting or not. It was also to be found out if on the date the suit was filed, whether the right to redeem could be exercised and was not barred by limitation. Merely this fact that the suit was filed within one year of the date of the order passed under Section 12 of the Act, would not make the suit to be within limitation, ipso facto. The following observations of their Lordships of the Supreme Court, in Shiv Lal's case, may be read with advantage :-