Chuha etc. vs Bhag Singh etc.

R.S. Pathak, C.J.—This Letters Patent Appeal is directed against the judgment and decree of our brother Chet Ram Thakur, J. arising out of a suit for redemption of land.

Two brothers, Sudama and Sadhu, mortgaged 71 bighas of their land for Rs. 100 in favour of Chuha, Gangu and Gokal in 1960 Bk. On Sudama''s death, Sadhu became owner of the entire estate and, therefore, the sole mortgagor. Subsequently Sadhu also died. He left three sons Govind, Bohra and Samandu. On the side of the mortgagees, Gangu and Gokal died without issues and Chuha became entitled to the mortgagee interest. Govind and Bohra sold the equity of redemption in respect of their 2/3rd share to Achhru and Nand Lal, sons of Chuha, on January 21, 1958. Achhru and Nand Lal redeemed their 2/3 share, thus leaving Chuha as mortgagee in respect of a 1/3rd share measuring 23 bighas and 16 biswas. Samandu, whose 1/3rd share remained in mortgage, died leaving the Plaintiffs as his heirs.

The Plaintiffs brought a suit for redemption of the land, claiming that it was a usufructuary mortgage and that having regard to the profits already enjoyed by the mortgagees from the land they were entitled to redemption without payment of money.

The suit was contested by Chuha. Inter-alia, he pleaded that Samandu had made an application for redemption in 1949 under the Redemption of Mortgages (Punjab) Act, 1913, and that the application had been dismissed, that thereafter he did not file the present suit within one year of the dismissal of the application and, therefore, the suit was barred by time.

The trial court framed several issues, one of them being whether the suit was barred by time. The issue was decided against the Defendant. The suit was decreed.

In appeal by Chuha before the learned District Judge, it was urged by the Appellant that as the suit had not been filed for setting aside the order of the Collector within one year from the date of dismissal of the application, it was barred by Section 12 of the Redemption of Mortgages (Punjab) Act. The learned District Judge repelled the contention, holding that as the application by Samandu had been dismissed in default, and not on the merits the suit was not barred by Section 12.

In second appeal by Chuha, our brother Chet Ram Thakur, J. has endorsed the view of the learned District Judge that the order of the Collector dismissing the application was not one of the orders contemplated by Section 12 and did not fall within the scope of Article 14 of the Indian Limitation Act, 1908, and, therefore, the suit was not barred by time.

And now this Letters Patent Appeal.

A few facts in respect of the application for redemption made before the Collector are necessary. It appears that on receipt of the summons u/s 5 of the Redemption of Mortgages (Punjab) Act, 1913, (hereinafter referred to as "the Act"), the Appellant filed a reply (a copy of which is Ex. D.W. 6A) opposing the redemption of the mortgage on the ground that the mortgage was more than 60 years old. The petition was dismissed by the Collector by an order dated July 9, 1949, which read:

Called out. None has appeared. Hence the file is dismissed under Order 9 Rule 3 Code of Civil Procedure" The Act provides a summary procedure for the redemption of certain mortgages of land. Section 1(3) describes the mortgages to which it applies. Section 4 entitles a mortgagor or his successor in interest to present a petition to the Collector for an order of redemption. Section 5 provides for summons to the mortgagee to appear. Sections 6 - 11 indicate how the Collector will proceed in cases where only one of the parties is present when the petition is called on for hearing, and in cases where both parties are present. There is no specific provision determining how the Collector will act where both parties are absent. Section 12 provides:

Saving of suits to establish rights.--Any party aggrieved by an order made under sections 6, 7, 8, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive.

Section 13 bars a further petition under the Act if a petition has already been dismissed under it.

It will be apparent that the Act purports to be a self-contained Code in regard to the entertaining and disposal of a petition made under it. But it is a complete Code in respect of those matters only which are specifically dealt with by it. Whether a proceeding or order falls within the scope of the Act must be determined by reference to its express provisions and by what can be necessarily implied having regard to the object and scope of the Act.

The question for consideration is whether the order of the Collector dismissing the mortgagor''s application on July 9, 1949, is an order within the contemplation of Section 12 of the Act, and whether no suit having been filed within the period of limitation of one year prescribed by Article 14 of the Indian Limitation Act, 1908, the order is conclusive and cannot now be challenged by way of the present suit.

It seems to me that the order of the Collector cannot be considered to be one of the orders mentioned in Section 12. Section 12 refers to an order made under Sections 6, 7, 8, 9, 10 or 11. The jurisdiction to pass an order u/s 6 arises where the mortgagee appears and the Petitioner does not appear when the petition is called on for hearing. An order u/s 7 is passed when the Petitioner appears but the mortgagee does not appear. Section 8 contemplates an order where both parties appear when the petition is called on for hearing. Section 9 lays down the procedure to be followed by the Collector in contentious cases. It envisages an order by the Collector on the merits of the dispute between the parties. So also do sections 10 and 11. The Appellant urges that the order of the Collector must be considered as an order u/s 10 because, he says, Section 10 empowers the Collector to dismiss the petition if he is of opinion that there is sufficient cause for not proceeding further with it. It is an order dismissing the petition for default and, he says, it must be construed as reflecting the opinion of the Collector that there was sufficient cause for not proceeding further with it. The submission, to my mind, is misconcieved. Section 10 provides:

If on enquiry regarding any objection raised by the mortgagee the Collector is of opinion that it...is the sufficient cause for not proceeding further with the petition, he shall dismiss the petition....

Sufficient cause" is related to the nature and content of the mortgagee''s objection, and not to the absence of the parties when the petition is called on for hearing. The Appellant then relies on Tulsi Dass alias Nirmal Dass and Ors. v. Diala Ram AIR 1943 Lahore 176, where it has been observed that the form of the final order alone matters, and not the reasons on which it is passed, when considering the application of Section 12. Those observations were made in a case where the application was dismissed by the Collector upon finding that the petition for redemption was premature. It is true that the court held that an order may fall within the scope of Section 12 even though it does not purport to decide the merits of the dispute between the parties. But the order in that case was an order made by the Collector after summary enquiry u/s 10. The Collector held that the petition did not fulfil the conditions laid down in Section 4. In the present case the order is very different. It was not made by the Collector after enquiry. It was made without the mind being applied to the questions which arose in the petition. The petition was dismissed on the mere circumstance that neither party appeared when it was called on for hearing. That is a situation not specifically contemplated by any of the sections 6 - 11. In Dewan Chand Chhaju Mal Vs. Raghibir Singh Milkha Singh, . the Punjab High Court has understood Tek Chand J. to say in Tulsi Dass supra that a case dismissed for default of the mortgagor would fall within the scope of Section 12, and that the order required to be set aside by a suit brought within the period of limitation prescribed by Article 14 of the Indian Limitation Act. It seems to me that when Tek Chand J. spoke of a case being dismissed for default of the mortgagor he was referring to a petition dismissed u/s 6 of the Act. He was not referring to a petition dismissed where neither party was present when the petition was called on for hearing.

To my mind the order must be attributed to the inherent powers of the Collector. The Collector was empowered by the Act to entertain a petition for redemption and to dispose it of. He could dispose it of in any of the situations envisaged by sections 6 - 11. In appropriate cases within those situations he could make an order dismissing the petition. But even where the situation was not one envisaged by Sections 6 - 11, he could make an order of dismissal. One such case can be contemplated where he finds that because neither party appears when the petition is called on for hearing he is unable to proceed further with the trial of the petition. Accordingly, he dismisses it. The case concerns private parties contending against one another; no public interest is involved. The power to make such an order is inherent in the Collector; it inheres in him by virtue of the jurisdiction vested in him to entertain and dispose of such petitions. In my opinion, the order made by the Collector must be considered as having been made by him in the exercise of his inherent power and not under sections 6 - 11. The order under consideration is not an order envisaged by Section 12, and therefore, Section 12 does not come into play.

The terms of the order indicate that the Collector thought that he was exercising jurisdiction under Order 9 Rule 3 of the Code of Civil Procedure. He assumed wrongly. The Act has not applied the CPC to petitions made under it. It will be noticed that Section 3 of the Act specifically provides that Sections 79, 85 - 87, 89 - 92 and 101 of the Punjab Tenancy Act, 1887, shall apply to all proceedings of a Collector under the Act. Reference to Section 88 of the Punjab Tenancy Act is significantly absent. Section 88(1) empowers the State Government to make rules of procedure for Revenue Courts and by any such rule to direct that the provisions of the CPC shall apply. Section 88(2) provides that until such rules are made the CPC shall apply to all proceedings in Revenue Courts. As Section 88 of the Punjab Tenancy Act has not been applied to proceedings under the present Act, the CPC cannot be referred to.

On the view taken by me that the order of the Collector must be attributed to his inherent powers, the order must be regarded as an order of an officer of Government passed in his official capacity. Accordingly, the question arises whether Article 14 of the Indian Limitation Act, 1908, is attracted. Now it will be apparent from the terms of the order that it has decided nothing. The order does not touch the maintainability of the petition or its merits. The Collector, it is apparent, did not apply his mind at all to any issue raised by the petition before the mind could be applied to any such issue, he considered it appropriate to dismiss the petition. He dismissed it because no one appeared before him. It is not an order which concludes any thing. It does not raise any cloud over the Petitioner''s title to redeem the mortgaged property. Consequently, it was not necessary for the mortgagor to have it set aside. As the Supreme Court has observed Jeewan Nath Wahal and Others Vs. Sheik Mahfooz Jan and Others, "an order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the relief unless it is set aside". The order of the Collector dismissing the petition on the ground simply that neither party appeared when the petition was called on for hearing is not such an order.

In my judgment, the learned single Judge was perfectly right in holding that the suit is not barred by time.

The Letters Patent Appeal fails and is dismissed with costs.