DORIK MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners have obtained a rule from this Court as to why the order passed by the respondent Deputy Collector, Land Reforms, Samastipur, dated 10-7-1976, (Annexure 1) under Section 12 of the Bihar Money Lenders Act, 1975, be not quashed and cancelled. The said order was passed on an application of respondents Nos. 4 to 6 who are the purchasers of the equity of redemption of the usufructuary mortgage bond dated 5-3-1915, executed by the original owner of the lands in question, namely, Nirsu Chamar. The said mortgage bond was executed in favour of the ancestors of the two petitioners, namely, Bhabi Mahto and Bikan Mahto, for a sum of Rs. 794/-. A copy of the mortgage bond has been made Annexure 2 to the writ application.

(2.) When the matter was placed earlier before a Division Bench of this Court consisting of B. P. Jha and V. Mishra, JJ., it was contended on behalf of the petitioners that since the mortgage itself was not subsisting, and the right of redemption having been lost to the mortgagor by lapse of time, the application under Section 12 of the Money Lenders Act was not maintainable. Reliance was placed in support of this contention on a Bench decision of this court in the case of Ram Rup Kuer v. State of Bihar, (1978 BBCJ (HC) 282). The learned Judges expressed doubts regarding the correctness of the aforesaid Bench decision in 'Ram Rup Kuer's case and accordingly referred the case to a larger Bench for consideration of the correctness of the said decision. In the opinion of the learned Judges the "provisions of the Limitation Act do not apply in such cases" as nowhere in the Act or the Rules it is stated that the provisions of the Limitation Act shall apply for recovery of possession of the mortgaged lands. They were further of the opinion that even if a suit was barred under the Limitation Act, then also the special provisions of Section 12 of the Money Lenders Act would apply for the benefit of the mortgagors.

(3.) With great respect to them, I must at the very outset express my inability to appreciate their reasonings for doubting the correctness of Ram Rup Kuer's case, particularly when on the facts of this case there was no question of applying the said case, and I also must state that the learned counsel appearing for, neither party supported the views expressed by the learned Judges. Nonetheless, I would discuss this case in brief. There, on reference to some authorities of different High Courts, it was held that after the expiry of the period of limitation for redemption of a mortgage, the remedy of the mortgagor to recover possession of the mortgaged property was extinguished as well as his right and interest in the said property.