Smt. Sham Kaur and Others vs Bagga Singh and Others

N.K. Kapoor, J.—This is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge setting aside the judgment and decree of the trial Court whereby the suit of the plaintiff was decreed as prayed for.

Briefly put, Plaintiff filed a suit for redemption of land. It is the case of the plaintiff that Rur Singh, Father of the plaintiff and Boota Singh defendant mortgaged a land for a sum of Rs. 3,500/- and so the plaintiff has a right to get it redeemed on payment of Rs. 3,500/-. Claim was resisted by the defendants stating that the plaintiff is not the owner of land, suit is beyond the period of limitation and that land is in possession of Nand Singh etc. who have not been impleaded in the present suit. It was further stated that the plaintiffs application for redemption of the suit land before the Collector was dismissed and since the present suit has not been filed within the period of prescribed limitation the same deserves to be dismissed. A number of issues were framed by the trial Court who after considering the matter decreed the suit as prayed for subject to the plaintiffs depositing a sum of Rs. 3,500/- by 27.5.1995 also the suit was deemed to have been dismissed.

Before the appellate Court the appellant mainly challenged the finding of the trial Court in respect of issue No. 1 i.e. "Whether the suit is within limitation. OPP" It was contended by the appellant that as per facts on record the plaintiff filed an application for redeeming the suit land before the Collector under the Redemption of Mortgages Act which was dismissed in default u/s 6 of the Act. According to the counsel, such an order can be challenged within one year under the Limitation Act. Since, present suit was filed after the expiry of period of limitation it ought to have been dismissed by the trial Court. Appellate Court noticed that the petition was dismissed by the SDO(C) exercising the powers of the Collector on 31.5.1966, exhibit D-1. Suit admittedly, had been filed on 30.12.1970. Relying upon the decision of this Court in Chanan Singh v. Shrimati Majo (1976) 78 P.L.R. 726 (F.B.) the Court held the suit to be not within limitation. Consequently, the appeal was accepted thereby dismissing the suit.

It has now been urged by the learned counsel for the appellant that order passed by the Collector was not on merits. Petition was simply dismissed in default. This being so, such a suit could not be dismissed on the ground of limitation by the lower Court. I find no merit in this contention of the appellant. Admittedly, the application filed for redemption of land before the Collector was dismissed in default on 31.5.1966, Exhibit D-1. This order was passed when the mortgagor did not put in appearance whereas mortgagee was present in Court. The Redemption of Mortgages (Punjab) Act 1913 provides summary procedure for redemption of certain mortgages of land in Punjab. Section 6 deals with procedure when petitioner is absent and the mortgagee is present. According to this Section when the mortgage appears and the petitioners does not appear when the petition is called on for hearing the Collector can adjourn the proceedings or make an order that the petition be dismissed unless the mortgagee admits the claim and in that case collector is to make an order that mortgage be redeemed and in case the mortgage is with possession, the mortgagor be put in possession of the mortgaged property and lastly, in case mortgagee deposit with the Collector the mortgage deed the same be delivered to the mortgagor petitioner. Thus, the order of dismissal dated 31.5.1966 is in terms of Sections 6 of the Act. Vide Section 12 any order passed by the Collector under Sections 6, 7, 8, 9, 10 or 11 can be challenged by an aggrieved party by instituting a suit to establish has rights in respect of the mortgage. Limitation to challenge such an order is one year. In the present case, suit was filed in December 1970 i.e. almost after a gap of about 4 years. Thus, finding no merit in this appeal the same is dismissed.