BHARAT SINGH Vs. BADLU

JUDGEMENT

(1.) THIS appeal under Clause X of the Letters Patent is directed against the judgment of a learned single Judge of this Court rendered in Regular Second appeal No. 1259 of 1972. Some undisputed facts may be noticed in order to understand the litigious course adopted by the controversy between the parties. The original owner of the land in dispute, Thambu by name, mortgaged the property with possession on July 10, 1963. About two years later, to be precise, on July 13, 1965, Thambu moved an application before the Collector for the redemption of the mortgage by means of a summary procedure available under the Redemption of Mortgages (Punjab) Act, 1913 (for short, the Act ). However, when the matter came up before the Collector on November 10, 1965, he made a statement that in view of a compromise effected by him with the contesting party, he was not desirous of getting the land redeemed. The application of thambu was, therefore, dismissed by the Collector in view of this statement.

(2.) IT is also not disputed that on May 24, 1967, Thambu filed another application before the Collector under the Act aforesaid, but his application was dismissed vide order dated Sep. 14, 1967 (Copy Exhibit P-3), on the ground that a second application for redemption was not competent under the Act. It transpires that Thambu decided to call it a day by selling the property in favour of the appellants on February 12, 1968.

(3.) THE appellants relit the torch of their proprietary rights first by means of a third application filed before the Collector which was dismissed vide order dated august 25, 1969, copies whereof were produced by both the parties as Exhibits p-2 and D-2 respectively. Thereafter, the appellants instituted a regular civil suit for obtaining possession of the suit land by redemption of the mortgage on payment of the mortgage amount. The suit was, however, dismissed by the trial Court only on the ground that the same was barred by limitation, as not having been instituted within one year from the order of the Collector passed on september 14, 1967, in the second application for redemption. Regardless of the set back, the appellants went up in first appeal before the District Judge in civil Appeal No. 70/13 of 1971, where the table was turned. The learned district Judge, after a consideration of the respective contentions advanced by the parties, came to the conclusion that the order passed by the Collector on november 10, 1965, in the first application for redemption, not being a decision on merits, no suit under Section 12 of the Act was necessary to be filed within the period of one year and the appellants were entitled to file a suit in the Civil court under the ordinary law of limitation. Here, it may be observed that there is no controversy between the parties that but for the attack in regard to the limitation prescribed for a suit by virtue of the Act, the present suit filed by the appellants was otherwise well within the period of limitation prescribed for suits of that nature. The learned District Judge, therefore, passed a preliminary decree under Order XXXIV, Rule 7, Code of Civil Procedure, in favour of the appellants and against the respondents for possession of the suit land by redemption on payment of the mortgage amount of Rs. 6,000/- to the respondents.