Ram Chandra Sahu and Others vs Smti. Sushila Agarwal and Others

J.N. Sarma, J.—This appeal been filed against the judgment and decree dated 22.11.91 passed by the learned Assistant District Judge, Golaghat in T.A. 17/88 dismissing the appeal and upholding the judgment and decree dated 18.8.88 passed by the learned Munsiff No. 1 Golaghat in T.S. 16/86 dismissing the suit of the Plaintiff. The Plaintiff filed a suit for redemption of the suit properly which their predecessor-in-interest gave in mortgage to the predecessor of the Defendant in the year 1956 i.e., on 25.6.56. The land is the subject matter of mortgage is only 7 lechas with a standing house on it at Dergaon. The deed of mortgage is a registered one and that is Ext. ''K''. There was a clause in the deed of mortgage that the amount shall be paid within a period of 5 years from the date of mortgage. The amount could not be paid within that time and ultimately a suit was filed on 2.8.86. Admittedly the suit wdiich was filed was beyond the period of 30 years as provided in the Article 61 of the Limitation Act, 1963. Article 61(a) of the Limitation Act provides that suits relating to immovable property by a mortgagor to redeem of recover possession of immovable property mortgaged the period is 30 years from which the period begins to run when the right to redeem or to recover possession accrues. The trial Court found that it is not a mortgage, but a mortgage with condition itself and accordingly dismissed the suit. There was an appeal being TA 17/88 before the learned Asstt. District Judge, Golaghat.

The learned judge found that the finding of the learned Munsiff that is a mortgage by condition itself is not correct and he found it to be a case of mortgage, but at the same time, he also dismissed the appeal holding that the suit is barred by tune as the suit was filed beyond 30 years as indicated above. Hence, this Second Appeal.

The only substantial question of law formulated in this second Appeal is "Whether the suit is barred by limitation?"

I have heard Mr. B.K. Goswami, learned Counsel for Appellant and none appears for the Respondents.

This aspect of the matter came up for consideration before the privy Council in AIR 1914 PC 36 (Mt. Bakhtawar Begum v. Hmaini Khanum and Anr.). There Privy Council was considering Article 148 of the Limitation Act, 1877 and that is almost parimateria with the present Article and there also the period of 9 years was provided for payment of the money and the Privy Council held that the right to redeem accrued after the lapse of 9 years. Same is the decision in Smt. Gulkandi and Others Vs. Harnarayan Phoolchand and Others, Where a Single Judge of the Madhya Pradesh High Court considered that aspect of the matter regarding the period. There a period of one year was provided for redemption of the mortgage and the Court held relying on the earliest decision of the Privy Council that the rights to redeem shall accrued only after lapse of one year and time from which the period begins to run will be after the lapse of one year.

The same is the decision of the Patna High Court in Harbans Narain Singh Vs. Ramdhari Mahton and Others, There a mortgage was executed on 23.3. 1887. Due date of redemption was 4.5.1890 and the suit was filed on 19.5.1950 and the Division Bench of the Patna High Court considered Article 148 of the Limitation Act and held as follows:

It is, therefore, clear that both in form and in substance the suit brought by the Plaintiff is a suit for redemption and so applying the provisions of Article 148 of the Limitation Act the starting point of limitation would be sixty years from the date the right to redeem accrued. It is also obvious in this case that the right to redeem accrued to the Plaintiff on 4.5.1890, which was the due date of redemption fixed in the usufructuary mortgage bond. If that date is the starting point of limitation it follows that the suit brought by the Plaintiff is barred u/s 148 of the Limitation Act.

In the instant case, after considering the point of Limitation to be after the expiry of 5 years, the suit which was filed on 2.8.86 cannot be deemed to be barred by limitation.

The next case is Shambhu Dayal Vs. Tarawanti and Others, There a single Judge of the Punjab and Haryana High Court has held that considering the point of limitation, the period will be after the expiry of the condition provided in the deed of mortgage.

That being the position, I hold that the suit for redemption of the mortgage is not barred by limitation and accordingly this Second Appeal is allowed by quashing the judgments of both the Courts below. The suit stands decreed.