Tara Singh alias Kartar Singh and others vs Gurdial Singh and others

J. V. Gupta, J.—This is plaintiffs'' second appeal whose suit for redemption of the mortgaged land was dismissed by the trial Court and the appeal was dismissed by the lower appellate Court as having abated. According to the plaintiffs, the mortgage was effected on 6th June, 1927, for Rs. 800/ in favour of the predecessorsininterest of the defendants. The present suit was filed on 30th November, 1970, for possession by way of redemption of the suit land. The suit was contested, inter alia, on the ground that the plaintiffs had filed an application for redemption of the land, before the Collector, Ajnala, under the Redemption of Mortgages (Punjab) Act 1913 (Act No. II of 1913) hereinafter referred to as the Act) and the same was dismissed on 23rd September, 1968, vide order Exhibit D1. Since the suit has been filed after more than one year of the said order, the suit was barred by time. The trial Court found that the suit was barred by time as the same was not filed within the statutory period of one year from the dismissal of the application by the Collector, vide order Exhibit D1 and, consequently, dismissed the plaintiffs'' suit. The plaintiffs'' filed the appeal in the Court of Additional District Judge, Amritsar. During the pendency of the appeal, one of the defendantsrespondents, Harbans Kaur, died. An application to bring the legal representatives on the record was filed on 11th December, 1974. However, this application was contested on behalf of the defendantsrespondents. Ultimately, the learned lower appellate Court found that the application was not filed within time and, consequently, dismissed the appeal as having abated. Dissatisfied with the same, the plaintiffs have filed this second appeal in this Court.

As the suit was pending since 1970, the learned counsel for the parties were directed on the last date of hearing that the appeal will be disposed of on merits instead of remanding the case to the lower appellate Court, after going through the question of abatement.

Learned counsel for the plaintiffappellants contended that the order of the Collector, Exhibit D1, dated 23.9.1968, did not decide the rights of the parties by virtue of the said order. The application was dismissed as the mortgagorplaintiff was not present, though the mortgageerespondent Narinder Singh was present. Thus, argued the learned counsel, the said order was of no consequence as it did not decide the rights of the parties and, therefore, there was no necessity of filing a suit within one year to set aside the said order. On the other hand, the learned counsel for the respondents submitted that the order of the Collector, Exhibit D1, was passed under Section 6 of the Act and, therefore, it was obligatory on the part of the plaintiffs to file the suit in view of the provisions of Section 12 of the Act.

After hearing the learned counsel for the parties, I am of the considered view that there is no merit in this appeal. From the perusal of the order, Exhibit D1, it is quite evident that the plaintiffmortgagor was not present whereas Narinder Singh, mortgageerespondent, was present. Thus, the application was dismissed for nonprosecution. Section 6 of the Act provides, inter alia, that where the mortgagee appears and 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. Thus, the said order will be deemed to have been passed under Section 6 of the Act. Section 12 of the Act provides thus :

``Any party aggrieved by an order made under Sections 6, 7, 8, 9, 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.

Notwithstanding anything in this section, a mortgagee against whom an ex parte order under Section 7 has been made or a petitioner whose petition has been dismissed in default under Section 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 costs 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.''''

From the perusal of the above reproduced section, it is quite evident that an order made under Section 6 of the Act will be conclusive unless it is challenged by way of a regular suit for which the limitation is one year. Admittedly, the suit was filed after the expiry of one year from the date of Collector''s order. Thus, no error could be found in the judgment of the trial Court while dismissing the suit as barred by time. Consequently, the appeal fails and is dismissed with no order as to costs.