BIR BHAN Vs. KAMLA DEVI AND OTHERS

JUDGEMENT

(1.) The petitioner, Bir Bhan and his brother Des Raj precessors- in-interest of the respondents were owners of the suit property in equal shares which was mortgaged by them on January 3, 1940 for a sum of Rs. 18,000/-. The petitioner alone filed a suit for redemption of the property including the share of the respondents which was decreed on March 14, 1977 and in execution thereof entered into exclusive possession of the suit property.

(2.) The respondents filed the present suit on September 29, 1982 for a decree to the extent of their share in the suit property on payment of Rs. 9,000/- that is, their share of the mortgage amount. One of the pleas raised in defence was that the suit was barred by time which was tried as a preliminary issue and answered against the defendant. The revision filed against the order of the trial Court was admitted to Division Bench at the motion stage and this is how we are seized of this matter.

(3.) The argument raised by the learned counsel for the petitioner to assail the correctness of the decision of the trial Court is that on redemption the defendant was subrogated to the rights of the mortgagees and as such it was incumbent on the respondents to file a suit for redemption within the prescribed period of limitation. There was some conflict of opinion on this question but so far as this Court is concerned it has been recently settled by a Division Bench of this Court in Jamait Singh v. State of Punjab and others, 1984 AIR(P&H) 351, and it was held that a non-redeeming co- mortgagor has two distinct rights or remedies vis-a-vis the redeeming co-mortgagor, i.e. (i) to get the property redeemed within the period of limitation prescribed by Article 61 of the Limitation Act, and (ii) an equitable right to get possession of his share of the property on payment of his share of the mortgage money within twelve years from the date of the redemption of the hypothetic by the redeeming co-mortgagor. The point involved in this revision, therefore, stands concluded against the petitioner and this petition is accordingly dismissed. No costs.