Sultan Singh and Others vs Rachhpal and Others

Teja Singh, C.J.—This order will dispose of second appeal No. 509 of 50 and civil revision No. 544 of 2006 Samvat. The facts may be briefly stated.

The parties to the litigation are Brahmans of village Dhancholi of District Narnaul on one side and Rajputs of the same village on the other. The Brahmans made a petition to the Collector of the District on 9-1-1903 for redemption of 97 bighas and 13 biswas of land, which according to them stood mortgaged with the Rajputs for Rs. 620/-. The petition was consigned to the record room on 19-1-1993. The exact words of the Col-lector''s order are:

No one is present. The mortgage money has also not been deposited. The petition should, therefore, be consigned to the record room after it has been registered.

On the following day, the Brahmans made another petition. The district Judge in his order has mentioned the date of'' this petition as 21-1-1993, but I cannot say wherefrom he has taken this date. The copy on the record gives the date as 20-1-1993. This petition was again ordered to be consigned to the record room on 24-1-1993. The order reads as follows:

(The Petitioners) called out. They have also been waited for several days; Consequently the papers should be consigned to the record room.

It is mentioned in the order of the District Judge that when the second petition was made, the Petitioners were directed to apply for restoration of the first application and they did make such an application but it was later on dismissed. No such order or the application for restoration can be found on the present record and it is not known wherefrom the District Judge got the facts relating to them.

On 10-2-1993, the applicants made a third application to the Collector. Notices were issued to the other side and after hearing their objections, on 30-8-1994 the Collector ordered redemption on payment of Rs. 620/-. This gave rise to suits, (1) No. 204 of 2000 by the Brahmans who will hereafter be referred to as mortgagors, & (2) No. 299 of 2000 by the Rajputs, i.e., the mortgagees These suits were instituted respectively on 19-4-2000 and 11-7-2000. The first was for possession, on the allegations that the mortgagors, after having, deposited the amount on which they had been granted redemption by the Collector, had obtained possession of the land but later on were wrongfully dispossessed by the mortgagees. The mortgagees'' suit was for declaration. They contended that since the previous two applications of the mortgagors had been dismissed by the Collector, they were debarred from making the third application and consequently the Collector''s order was without jurisdiction and they were entitled to the declaration that they were the owners of the land. The proceedings in the two suits were consolidated and while the first suit was decreed the second was dismissed. The mortgagees preferred appeals to the District Judge from the decrees to both the suits, taut failed. They have now come to this Court in second appeal. In view of the fact that the appeals to the District Judge resulted in two separate decrees and the mortgagees impugned both the decrees, there should have been two appeals, but what they have done is they have preferred a consolidated appeal from both the decrees. This procedure is irregular and is not warranted by law. But since no objection was taken by the respondents nor was the mistake detected by the office at the time the appeal was preferred, and not only copies of both the decrees have been appended to the memorandum of appeal and the court fees paid consists of the total amount that would have been paid had there been separate appeals, I would condone the mistake, treat the appeal as if it consists of two separate appeals and direct that it should be registered as such.

It may be here mentioned that two of the mortgagees namely, Kidara and Dina are minors, and in the mortgagors'' suit in which they were defendants, an Ahalmad of the Court was appointed their guardian-ad-litem. The record shows that the guardian put in a written statement on behalf of the minors and thereafter took no interest in the proceedings. Either this fact was not brought to the notice of the trial Court or it considered it of no importance, and the proceedings in the case continued in the absence of the guardian. In the decree sheet, minors under the guardianship of the Ahalmad were mentioned among the defendants, that is to say, the decree against them as it was in the case of the other defendants purported to be on merits and not ex parte. In the appeal that was preferred against the decree of the trial Court in the mortgagors'' suit (i.e., No. 204 of 2000), the minors were originally made respondents but were later on made Appellants under the orders of the Court dated 4-6-2006. In the meanwhile, an application had been made by one Mool Singh on behalf of the minors to the trial Court on 1-2-2005 for setting aside the decree in so far as it related to them, on the pleas that their guardian had neglected to conduct the suit on their behalf and the decree against them was ex parte. This application was dismissed by the trial Court on 14-2-2005. The appeal against the order dismissing the application preferred to the Court of the District Judge also failed. The revision petition is directed against the appellate order of the District Judge.

The arguments in appeal were confined to two points. The first is that the Collector had no jurisdiction to entertain the mortgagors'' third application of 10-2-1993 and his order of 30-8-1994 allowing redemption was void. In order to be able to appreciate the force of the contention, it is necessary to refer to the various provisions of the Redemption of Mortgages Act under which the application was made. Section 4 deals with the petition for redemption & besides laying down that the mortgagor or other person entitled to institute a suit for redemption may, at any time after the principal money had become payable and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is for possession that he be put in possession of. the mortgaged property, and that the petition shall be duly verified in the manner prescribed by law for verification of plaints, and shall state the sum which the Petitioner declares to the best of his belief to be due under the mortgage. The last sentence of the first part of the section is to the effect that the Petitioner while making the petition shall deposit the amount which according to him is due under the mortgage Section 5 reads as follows:

When the petition has been duly presented and the deposit has been made, the Collector snail issue to the mortgagee a summons to appear on a date to be therein specified. Every summons shall be accompanied by a copy of the petition with the date of deposit endorsed thereon.

Sections 6 and, 7 lay down the procedure which is to be adopted respectively (1) when the Petitioner is absent and the mortgagee present, and (2) when the Petitioner is present and the mortgagee is absent. According to Section 6, when mortgagee appears & the Petitioner does not appear when the petition is called on for hearing the Collector shall, unless he adjourns the proceedings, make an order that the petition be dismissed, unless the mortgagee admits the claim in which case an. order shall be made for the redemption of the mortgage etc. While according to Section 7, when the Petitioner appears and the mortgagee does not appear, the Collector is to inquire in a summary manner whether the Petitioner is entitled to redeem and whether the sum deposited by him is rightly due under the mortgage and if he is not satisfied that the Petitioner is entitled to redeem, he should dismiss the petition. Section 7 also lays down that if as a result of the enquiry made by the Collector he comes to the conclusion that the amount due under the mortgage is larger than the one deposited by the Petitioner, he shall call upon the Petitioner to make up the deficiency together with interest that might be due within the time to be allowed by him and if the Petitioner fails to do so within the period fixed, the petition shall be dismissed.

Sections 8 and 9 deal with the procedure when both parties attend, but the mortgagee either claims more sum than that deposited by the Petitioner or he denies the Petitioner''s right to redeem, and lay down that the petition shall be. dismissed if the Petitioner fails to deposit within the time allowed to him the difference between the amount deposited with the petition & that determined by the Collector to be due to the mortgagee or if the Collector holds that he had no right to redeem. Sections 10 and 11 also give the Collector a right to dismiss the petition for certain reasons. The relevant parts thereof read as follows:

If on inquiry regarding any objection so raised (i.e., u/s 9) by the mortgages the Collector is of opinion that it bars redemption or is a sufficient cause for not proceeding further with the petition, he shall dismiss the petition.

If on inquiry regarding the sum due the Collector...is of opinion that a sum larger than the sum deposited should be deposited... he shall unless he dismisses the petition u/s 10, fix a period not exceeding 30 days withim which the Petitioner shall deposit the difference.... If the Petitioner fails to make such deposit within the period fixed, the Collector shall dismiss the petition.

Section 12 gives the party aggrieved by an order made by the Collector under Sections 6, 7,8, 9, 10 or 11, a right to institute a suit to establish his right in respect of the mortgage and lays down that subject to the result of such suit, if any the order shall be conclusive. The second part or Section 12 makes a provision for the setting aside of ex parte orders. It says:

Notwithstanding anything in this section a mortgagee against whom an ex parte order u/s 7 has been made or a Petitioner Whose petition has been dismissed in default u/s 6, may apply to the Collector to have such order or dismissal set aside, and the Collector may in his discretion set aside such order or dismissal on such terms as to cost or otherwise as he may deem fit; provided that the order or dismissal shall not be set aside unless notice of the application has been served on the opposite party.

Section 13 reads as follows:

The dismissal of a petition under this Act shall bar any further petition under this Act by the same Petitioner or his representative in respect of the same mortgage.

Relying upon this section, the Appellants'' counsel argued that because the previous two applications of the mortgagors were dismissed, one on 19-1-1993 and the other on 24-1-1993, they had no right to make a fresh application.

(12a) The question now is whether Section 13 applies to the facts of the present case. The first thing important is that the previous two petitions were not dismissed, and as I have mentioned in the earlier part of this judgment, the Collector merely ordered them to be consigned to the record room. The Appellants'' counsel argued that though the word "dismissed" was not used by the Collector, his order, in fact, amounted to dismissal of the petitions and in support of his contention he referred us to a number of cases. In my opinion, none of those cases is applicable, because they all relate to suits or to applications for execution of decrees, and since the CPC which governs suits and such applications is exhaustive it has been held that in order to find out what an order passed by a Court really amounts to, we should look to the effect of the order and not the words used. For example, when a Plaintiff is absent and the Court instead of saying that the suit is dismissed in default, records an order that it should be consigned to the record room, it has been held that the order should be taken as an order made under Order 9, Rule 3, C.P.C. Similarly, If the Plaintiff is absent but the Defendant is present and the suit is ordered to be consigned to the record room, it has been held that the order should be regarded as one made under Order 9, Rule 8, C.P.C. If no application for restoration is made within time, fresh suit would be barred. So far as petitions for redemption are concerned, they are governed wholly by the Redemption of Mortgages Act which is a miniature Code in itself and the provisions of the CPC do not apply to such applications. According to the Code, order dismissing a petition can only be made under Sections 6 to 11 and under no other section and after the Petitioner had deposited the amount due under the mortgage and summons have been issued to the mortgagee. The Code is silent as to what is to happen if the Petitioner fails to deposit the amount or he fails to attend before summons are issued to the mortgagee. Evidently, therefore, the intention of the framers of the Code was that the petition was not to be dismissed & it was either to be rejected or consigned to the record room.

Let us, however, assume for the sake of argument that the orders of the Collector dismissing the first two petitions were legal, my opinion is that even then they do not attract the application of Section 13, because the dismissals were not "under the Act". The Appellants'' counsel urged that the words "under this Act" appearing in the section qualify petition and not dismissal of a petition. In my judgment, by interpreting the section in this manner, we would be doing violence to its language. In addition, there was no necessity to define the petition, because the whole Act relates only to one kind of petition, i.e., a petition for redemption. In view of the fact that the Act authorises the dismissal of a petition only under Sections 6 to 11 and the orders dismissing the previous two petitions were not made under any of these sections, it cannot be held that they were dismissals "under the Act" and consequently they did not debar the Petitioners from making a third petition.

A careful study of the whole scheme of the Act also leads me to the same conclusion. It will be remembered that if the mortgagee appears but the Petitioner does not appear, unless the mortgagee admits the Petitioner''s claim, the petition is to be dismissed u/s 6. Section 12 gives the Petitioner a right to have the order of dismissal set aside in an appropriate case. No such provision exists in a case where neither the Petitioner nor the mortgagee appears and the petition is dismissed in default. Now if we hold as the Appellants'' counsel contends that we should hold that even when both sides fail to appear, the Collector is bound to make an order dismissing the petition and u/s 13, such order of dismissal would bar a subsequent petition, the result would be that the Petitioner''s position would be much worse than it would be in the case when his petition is dismissed u/s 6 in the presence of the other side, because in the latter case he would be entitled to apply for restoration of his petition, but no such relief would be open to him in the former case.

I might again refer to the provisions of the CPC in this connection. Order 9, Rule 3, lays down that when a Plaintiff''s suit is called on for hearing and neither he nor the other side appears, the suit shall be dismissed in default. A similar result is to follow under Order 9, Rule 8, when the Defendant appears but the Plaintiff does not appear. In case a suit is dismissed under Order 9, Rule 3, it is open to the Plaintiff to apply for the restoration of the case, or he may institute the suit afresh, provided it is still within time. If the dismissal of the suit is under Order 9, Rule 8, the only remedy available to him is to have the order of dismissal set aside by an application under Order 9, Rule 9, and if he does not succeed in this, a fresh suit is barred. Section 12 of the Redemption of Mortgages Act also gives a similar remedy to the Petitioner whose petition is dismissed in default in the presence of the other side. The absence from the Act of a provision analogous to Rule 4 of Order 9, C.P.C., and the qualification of the dismissal of a petition by the words "under this Act" in Section 13 leave no doubt in my mind that the scheme of the Act was that unless the petition was dismissed or allowed under Sections 6 to 11, its dismissal for any other reason does not debar the Petitioner from making a fresh petition.

It was stressed by the Appellants'' counsel that the Act being a special Act providing a summary procedure for the redemption of mortgages, when a mortgagor decides to avail of its provisions he is entitled to its benefit but at the same time he must suffer its disadvantages and he referred us to a number of cases on this point. I have no dispute regarding the precise proposition of law enunciated by the counsel and I agree with him that when a mortgagor makes an application under the Redemption of Mortgages Act he cannot escape the consequences that follow therefrom, i.e., to say, if the Collector makes an order against him under Sections 6 to 11 and he is aggrieved by that order, unless he brings a suit to set aside that order within the period of limitation allowed by law, the order would be conclusive and he would be bound by it. Similarly, I hold that if his petition is dismissed and the dismissal can be regarded as one under the Act, he will be debarred from making another petition. Where, however, I do not agree with him is that the dismissals of the previous two petitions by the present mortgagors were dismissals under the Act. Of the cases cited by the counsel, the only case that can be of help to us in determination of this question is the Full Bench decision of the Lahore High Court in - "Tulsi Das v. Diala Ram" AIR 1943 Lah 176 In that case, a petition was made by a mortgagor to an Assistant Collector for redemption of a mortgage u/s 4 of the Punjab Redemption of Mortgages Act (No. 2 of 1913) which is the same as our Act. In fact, it was the Punjab Act that was adopted by the erstwhile Patiala State and is now in force in the Union. After the mortgagor had deposited the amount due under the mortgage, summons was issued to the mortgagee and when the latter appeared before the Assistant collector he raised the objection that the petition was premature and the land could not be redeemed, because the period for redemption which had been fixed as twenty years had not expired. The Assistant Collector accepted this objection and made the following order:

Defendants have produced the mortgage deed making it a condition that mortgage should not be redeemable for twenty years. The deed was executed on 22-10-1910 and since the limit has not been passed the application for redemption is rejected. Deposit to be paid back to the applicant.

On 12-7-1938, the Petitioner, who claimed to be the successor-in-interest of the original mortgagor, presented before the Assistant Collector another petition u/s 4 of the Act. The mortgagee resisted the application inter alia on the ground that the second application was barred by virtue of Section 13 of the Act. The Assistant Collector overruled that objection holding that the former petition had been rejected and not dismissed and accordingly Section 13 did not apply. Eventually, he made an order allowing redemption on payment of a certain amount. It appears that the mortgagee died in the meanwhile and his sons brought a suit for declaration in a civil court ''that the order of the Assistant Collector allowing redemption on payment of the amount fixed by him was ultra vires, illegal and void and in the alternative for a declaration that the land was not liable to be redeemed without payment of a much larger sum than that allowed by the Assistant Collector. The trial Court repelled the first plea of the Plaintiffs but granted them the declaration that they were entitled to Rs. 490/- over and above the amount allowed by the Assistant Collector. Not being satisfied with the decree of the trial Court, the Plaintiffs appealed to the District Judge & reiterated their plea that the order of the Assistant Collector was ultra vires, void and ineffectual. Having failed there, they went up in second appeal to the High Court. Din Mohammad J., before whom the appeal came up in Single Bench, referred it to the Full Bench after formulating the following two questions:

(1) Whether an application made u/s 4 of the Act for redemption of a mortgage cannot be treated as an application under the Act if it is rejected or dismissed by the Collector on the ground that it is premature?

(2) Whether the orders contemplated u/s 12 of the Act are confined to those orders only which are made on the merits of the case or cover all orders irrespective of the fact whether they dispose of any question on the merits or not?

The Bench answered the first question in the affirmative. Din Mohammad J. while discussing the question and dealing with the fact that the petition had been presented before the principal. money became payable made the following observations:

A petition thus presented before the principal money becomes payable cannot in any circumstances be said to have been duly presented and no process u/s 5 can in such circumstances issue.... As I look at the matter he (the Collector) could even at the very first stage refuse to issue summons without making any further order in the matter and his order of rejection, therefore, was merely tantamount to saying that no petition lay under the Act. I am conscious of the fact that it is nowhere expressly laid down in the Act itself that in case a petition is not duly presented it would be rejected but such an order is implied in the terms of Section 5 itself. I am also aware that Section 9 con templates the raising of objections by the mortgagee on any ground other than the amount of the deposit but in my opinion those grounds do not necessarily refer to the matters already dealt with u/s 4. For instance, a mortgagor''s petition cannot be dismissed u/s 9 read with Section 10 if it is not properly verified or does not contain such particulars or is not accompanied by such documents as may be prescribed. In this view of the case, the first application would be no bar to the presentation of the second application u/s 13 of the Act and the mortgagee''s suit would consequently be maintainable.

The observations made by Beckett J. which appear at page 188 of the printed report are as follows:

Since it seems to me that the answer to the question must depend on the view which one may happen to take of the orders passed in a particular case, I do not propose to do more than state my own views briefly. As stated in 1937 M.W.N. 480 at page 485 the interpretation of similar orders in execution proceedings must depend upon the surrounding circumstances even though the order may be actually worded as one of dismissal. In the present instance, I find it difficult to believe that the Collector intended the order of rejection passed on 14-8-1929 to operate as a final order of dismissal which would bar any further petition for summary redemption under the Act. Not only is the order word ed as one of rejection and not one of dismissal which might in itself be merely a careless inter change of terms, but it seems to me that the order as a whole is so worded as to show that it was intended to be tantamount to a direction that the application should be brought up again at the proper time.

My opinion is that these observations can well apply to the orders made by the Collector consigning the previous petition and there can be no manner of doubt that even if he intended to dismiss the petition they were not meant to take away the Petitioner''s right to file a fresh petition, for redemption. For all these reasons, the first point is decided against the Appellants.

The second point raised by the Appellant''s counsel was that because of the minority of Kidara & Dina & the failure of their guardian-ad-litem to attend the proceedings the decree passed by the trial Court in the mortgagor''s suit so far as it related to them was a nullity. In my opinion there is no force in this contention. It is true that the minors guardian did not attend the Court after putting in the written statement but with all this the Court did not take ex parte proceedings against them. Nor do I think that the Court was bound to do so, because the interests of the minors in the suit were identical with those of the other defendants who were mortgagees like them and the absence of the minors'' guardian did not make any difference so far as the conduct of the suit was concerned.

It was also urged by the Appellant''s counsel that as soon as the Court came to know that the minors'' guardian was not appearing it was its duty to remove him from guardianship and to call upon the Plaintiffs to appoint a fresh guardian. This again is a proposition with which I do not agree. According to Clause (ii) of Rule 11 of Order 32, the Court is to appoint a new guardian in place of a previous guardian of the minor when the latter retires, dies or is removed by the Court. There is nothing to show that the Ahalmad of the Court who was appointed guardian of Kidar and Dina had died or he ever retired, nor is there any order on the record by which he was removed. This means that he continued to be the guardian. A perusal of Clause (1), of Rule 11, makes me think that there should be an express order of the Court removing the guardian or permitting him to retire. The words of the clause are:

Where the guardian for the suit desires to retire, or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him and may make such order as it thinks fit.

The word being ''may'' it is clear that even if the guardian of a minor does not do his duty or wishes to retire, the Court is; not bound to remove him. Then taking into consideration the circumstances of the case, I am of the opinion that mere failure of the Ahalmad to attend the Court or to take any active interest in the proceedings did not justify the conclusion that he was not doing his duty. As pointed out above there were other defendants in the case who wore opposing the Plaintiffs'' suit and were; doing all that was necessary to defend the case. Some of the defendants were closed related to the minors. The probability, therefore, is that the Ahalmad thought that there was no use in his going to the Court on every hearing and there was nothing particular that he could do over and above what the other defendants were doing. In this connection I cannot do better than quote the observations made by King J., in - Nookala Peda Satyam and Another, minor by Guardian Venkamma and Others Vs. Thummalapalli Krishnamurty, An ex parte decree had been passed against a minor Defendant because his guardian did not attend and the learned Judge was considering the different views that could possibly be taken with regard to the failure of a guardian or next friend or a minor party in a suit to appear. This is what he said:

There is a fourth possible explanation for non-appearance which has not been considered, which no doubt, would very rarely apply in the case of a next friend of a Plaintiff whose change of attitude is itself prima facie indication of the neglect of the Plaintiff''s interests, but may well apply to the guardian of the minor defendant. It is this that the minor Defendant has no case to put forward and that his guardian realises this and exercising his judgment honestly and deliberately and in the interests of the minor Defendant decided that no good purpose can be served by putting in appearance. In such circumstances the non-appearance of a guardian is not a sufficient cause within the meaning of Order 9, Rule 13. A party can be said to be prevented from appearing only when he wishes to appear, and he wishes to appear only when he has some point of view to press upon the Court''s attention, If he recognizes the justice of the Plaintiff''s claim and is content to have a decree passed against him and for that reason fails to appeal he is in no sense prevented from appearing.

I am aware that it cannot be said in this case that the guardian had no point of view to press before the Court but if he honestly believed that the point of view that he had to present was already being effectively presented by other defendants his failure to attend does not mean his failure to discharge his duty. Accordingly there was nothing wrong in the Court''s omission to remove him from guardianship and the decree against the minors was not vitiated by any kind of illegality. Nor can the decree against the minors be regarded as an ex parte decree, but even if we assume that it was, it could only be set aside for a sufficient cause and I do not believe that such a cause has been shown.

This disposes of both the appeal and the revision petition, but as regards the petition I wish to make an additional observation that it was not presented by a competent person. The law is that when once a next friend or a guardian ad litem of a minor is appointed in a suit he continues to occupy that position throughout the lis and appeals and revision petitions arising out of a suit are parts of the lis. Reference in this connection may be made to - ''Sawan Ram v. Nachittar Singh'' AIR 1952 Pepsu 63 That was a case of a next friend of a minor Plaintiff and it was held that no one except the person who was originally the next friend of the minor can intervene on his behalf until he applies to the Court to have the next friend removed. These principles apply even in the case of a guardian of a minor Defendant and since no permission of the Court was obtained for removal of the Ahalmad from the guardianship of the minors and the appointment of the person who has preferred the revision petition in his place, the petition was not properly presented. The appeal preferred on behalf of the minors to the District Judge from the order of the trial Court dismissing their application to set aside the ex parte decree was also open to the same objection.

In the result I would dismiss the appeal as well as the revision petition with costs throughout.

Gurnam Singh, J.

I agree.