RAM RUP KUER Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners in this writ application have questioned the authority of the respondent Deputy Collector Land Reforms to direct the petitioners to deliver possession of the land, which had been in their possession as mortgagees thereof, to respondent no. 3, who claims that he is entitled to recover possession of the same as mortgagor thereof, in accordance with the provisions of section 12 of the Bihar Money-Lenders Act, 1974 (hereinafter to be referred to as the Money-Lenders Act).

(2.) It appears that one Dahu Kanu executed a usufructuary mortgage on 31.5.1920 in favour of petitioner no. 1 and father of petitioner nos. 2 and 3 mortgaging 15 kathas 5 dhurs of land for an advance of Rs. 200. The period for which the land was to remain under mortgage was 9 years, i. e. Dahu Kanu after paying the mortgage money could have redeemed the said mortgage sometime in the year 1929. A copy of that mortgage-deed is Annexurc-1 to the writ application. However, neither the mortgage money was paid for any step for redemption was taken by said Dahu Kanu. On 14.11.1975, respondent no. 3, claiming to be an heir of the aforesaid mortgagor, filed an application under section 12 of the Money-Lenders Act reads with rule 10 (2) of the Rules framed under the aforesaid Act before the respondent Deputy Collector saying that the statutory period of 7 years having expired since the date of the execution of the mortgage bond, he was entitled to recover possession of the mortgaged land in accordance with the provisions of the said Money-Lenders Act and the Rules framed thereunder. Notice was issued to the petitioners asking them to show cause as to why in accordance with the provisions of section 12, possession over the mortgaged land should not be delivered to respondent no. 3. Ultimately, by an order dated 30 12.1975, the respondent Deputy Collector directed the petitioners to deliver possession of the land to respondent no. 3 by 22.1.1976 failing which possession should be delivered to him through a court. A copy of that order is Annexure 3 for the writ application.

(3.) The petitioner in the writ application had also challenged the vires of section 12 of the Money Lenders Act. However, at the time of the hearing in view of a Full Bench decision of this Court in the case of Madho Singh v. State of Bihar and others, (CWJC No 670 of 1977), decided on 7.11.1977, learned counsel appearing on behalf of the petitioners has not pressed that point. He, however, submitted that question of redemption will arise only if it is found that the mortgage bond, which was executed still subsists. If. however, according to the learned counsel, it is held that the right to redeem the said mortgage was extinguished prior to coming into force of the provisions of the Money Lenders Act, there is no question of statutory redemption under the provisions of the said Act.