Telu Ram and others vs Chanan Singh and others

D.K. Mahajan, J.—Regular Second Appeals Nos. 863 and 864 of 1960 are directed against the decision of the District Judge, Bhatinda, reversing on appeal the decision of the trial Court decreeing the Plaintiffs'' suit. This judgment will dispose of both the regular second appeals.

In order to appreciate the controversy, it is necessary to set out a short pedigree-table of the mortgagees: Anokha had two sons, Telu Ram and Kishori Lal. Kishori Lal had four sons, Kanshi Ram, Chandu Lal, Ram Lal and Sehaj Ram. The land in dispute was mortgaged by one Jiwna to Anokha. It seems that Jiwna died childless without leaving any heir and his estate has by escheat vested in the erst wile State of Patiala and East Punjab States Union. Naib Tehsildar sent a note in the following terms to the Tehsildar:

It is prayed that arrangement may be made for getting the land redeemed.

This note is Exhibit P. 6, and there is no dispute between the parties that it concerns the land which Jiwna mortgaged to Anokha on the 2nd January, 1956. There is an order of the Tehsildar in the following terms:

According to the orders of the Deputy Commissioner, Bhatinda, No. 453 dated the 21st December, 1965, file may be started and it should be sent to the Deputy Commissioner, Bhatinda, for being entered in the register.

It appears that the file was started and sent to the Deputy Commissioner and on the 7th April, 1956, Exhibit P. 7 is the order passed in the office of the Deputy Commissioner, which is in these terms:

Entry be made in the register. Notice be issued to the mortgagees to the,effect whether they have any objection to redemption of the mortgage. If they have any such objection, they should come and present the objection by the 27th April, 1956 .

The next order is Exhibit P. 8 dated the 27th April 1956, by the Deputy Commissioner-

No one present. Telu Ram and Sehaj Ram have not appeared in spite of service. other Respondents not served (the other Respondents, who were not served, being Kanshi Ram, Chandu Lal and Ram Lal). They may be called for the 17th May, 1956.

On the 17th May, 1956. Exhibit P. 13 is the order that was passed and is in these terms:

No one present. Telu Ram and Sehaj Ram did not appear at the last hearing. Ex-parte against them. The other Respondents be summoned lor the 31st May, 1956, because in such cases question of limitation is involved.

On the 31st May 1956, the following order (Exhibit P. 13) - allowing redemption was passed:

No one present. From the file it is evident that the area measuring 102 bighas 6 biswas is under mortgage with Telu Ram and others for Rs. 1,377/-. The mortgagor is the Pepsu Government. Pepsu Government wants to redeem the land under mortgage. Telu Ram and Sehaj Ram are being proceeded ex-parte. There is no hitch in ordering redemption. The land is ordered to be redeemed on payment of Rs. 1,377/-. Possession be delivered to Government, and mortgage money be paid to the mortgagees. The mortgagees may be informed.

It will be apparent from the last order that nothing was said about service on Kanshi Ram, Chandu Lal and Ram Lal, There is no evidence on the record that they were served. Therefore, in the absence of service on the co-mortgagees no order of redemption could in law be at all passed and in any case that order would be wholly void as against the co-mortgagees.

It may be mentioned at this stage that an application was made to the Collector to set aside the ex parte order pasted on the 31st May, 1956, and by his order dated the 15th April, 1958, he refused to set aside the ex parte order. Such an application is competent u/s 12 of the Redemption of Mortgages (Punjab) Act No. 2 of 1913. The ground that was taken in the application for setting aside the ex parte order was that no service had been effected on the mortgagees. It may also be mentioned that the land in dispute has been allotted to Defendants Chanan Singh and Sadhu Singh.

The present suit has been filed by the mortgagees for possession of the land mortgaged with them on the ground that the order of the Collector dated the 31st May, 1956, is without jurisdiction and is void and that the mortgage being more than 60 years old the Appellant-mortgagees cannot be deprived of the land mortgageed with them. By lapse of period of limitation they have become the owners of the land. In defence it was pleaded that no valid notice u/s 80 of the CPC had been served, that the suit was barred by time under Article 14 of the Limitatition Act and that the suit in the present form is not maintainable. It was also pleaded that the mortgage was within 60 years and that the order of the Collector was not void or without jurisdiction. On the pleadings of the parties, following issues were framed:

(1) Whether the suit is within limitation?

(2) Whether a valid notice u/s 80, Code of Civil Procedure, was given ?

(3) Whether the suit in the present form is maintainable ?

(4) Whether the mortgage was effected within 60 years from 2nd January, 1956 ?

(5) If issue No. 4 is proved, whether the order of the Collector dated the 31st May, 1956, is void ?

(6) Whether the suit is bad for nonjoinder of necessary parties ?

(7) Relief.

All these issues were decided by the trial Court in favour of the Plaintiffs and the suit was decreed. On appeal, the,learned appellate Court has disturbed the decision of the trial Court on issue No. 1 and has held that the suit is beyond time. He has held so on the basis of Article 14 of the Limitation Act. The ground is that the suit having been filed more than one year of the order of the Collector is barred by time. The mortgagees have come up in second appeal to this Court.

The contentions advanced by Mr. J.N. Kaushal, learned Counsel for the Appellants, are (1) that the order of the Collector dated the 31st May, 1956, is wholly void, for two reasons ; one, that- there was no proper or valid application before the Collector on which the order of redemption could be passed, and two, that the order was passed with-out serving some of the co-mortgagees, and (2) that the period of limitation under Article 14 will start from the date when the order refusing to sat aside ex parte order passed by the Collector was made and from that order the suit is within one year and clearly within time. The stand taken up by the Respondents is that the mortgage was within time on the date when the Collector passed the order, and, therefore, the decision of the trial Court that the mortgage was beyond 60 years is wrong. The contentions raised by Mr. Kaushal are also refuted.

In my view the contentions of Mr. Kaushal are sound and must prevail. It is a fundamental rule of law that an order passed behind the back of a party without service on him is of no consequence. Similar view was taken in Sampuran Singh v. The Chief Settlement Commissioner Delhi (1959) 81 P.L.R. 926 and it was held that such an order is void. In any case, no valid order could be passed without serving all the co-mortgagees. It was held in Mathra Das v. Nizam Din AIR 1917 Lab. 443 and Sita Ram Apaji Kode v. Shridhar Anant Prabhu ILR 1903 Bom. 292 that payment to one of the mortgagees does not operate as a valid discharge and does not extinguish the- mortgage. Therefore, it follows that the service on two out of the five joint mortgagees will be no service on the mortgagees to enable the Collector to pass a valid order of redemption. From the orders of the Collector it would be apparent that no attempt was made after a certain time to serve the remaining three mortgagees though the Collector had taken the stand that it was essential to serve all the mortgagees. Once it is held that the order is void, no question of limitation will arise. It is not necessary in this situation for the Plaintiffs to file a suit to get the void order set aside. A void order has no existence in law and can always be ignored. The present suit was filed to recover possession on the ground that there was no order of redemption and once it is held that there is no order of redemption, the Plaintiffs were entitled to a decree and the question with regard to the mortgage being within 60 years or beyond 60 years was wholly immaterial for the decision of the present suit. It is for this reason that I am not expressing any opinion as to whether the mortgage is within time or not. That question is left open for decision in proper proceedings.

I,may also mention that no application as required by Section 4 of the Redemption of Mortgages (Punjab) Act, 1913 was filed. The requirement of Section 4 is that a person entitled to institute a suit for redemption may, at any time after the principal money becomes payable and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage he redeemed, and where the mortgage is with possession that he may be put in possession of the mortgaged-property. The petition shall be duly verified in the manner prescribed by law for the 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 Petitioner shall at the same time deposit such sum with the Collector. Section 5 provides that when a petition has been duly presented and the deposit has been made, the Collector shall issue summons to the mortgagee to appear on a date to be therein specified. Every summon shall be accompanied by a copy of the petition, with the date of deposit endorsed thereon. Section 6 provides the procedure to be followed when the Petitioner is absent and the mortgagee is present. Section 7, which is in these terms, provides the procedure to be adopted when the Petitioner is present and the mortgagee is absent after service and this is the section with which we are concerned:

When the Petitioner appears, but the mortgagee does not appear, when the petition is called on for hearing, the Collector shall, unless he adjourns the proceedings, enquire in a summary manner (a) whether the Petitioner is entitled to redeem the mortgaged property, and (b) whether the sum deposited by the Petitioner is the sum rightly due under the mortgage.

If the Collector is not satisfied that the Petitioner is entitled to redeem, he shall dismiss the petition.

If the Collector is satisfied that the Petitioner is entitled to redeem, and that the sum deposited is the sum rightly due under the mortgage, he shall make an order as laid down in- Section 6(a), (b), (c) and (d) of this Act.

If the Collector is satisfied that the Petitioner is entitled to redeem, but is of opinion that a sum larger than that in deposit is due under the mortgage, be shall fix a period not exceeding SO days within which the Petitioner shall deposit the difference, together with any further sum which may be due on account of interest up to the date of deposit. If the Petitioner makes such deposit within such period or such further period not exceeding 30 days as the Collector may fix, the Collector shall make an order in manner aforesaid.

If the Petitioner fails to make such deposit within the period fixed, the Collector shall dismiss the petition.

This section will only come into play if the mortgagee has been served. As I have already observed, the mortgagee in this case was not served, and, therefore, there could be no question of an order u/s 7 being passed. Section 12 provides for a suit to challenge the order of redemption passed under the Act or the refusal of the Collector to pass an order for redemption under the Act, and it is on the basis of Section 12 that issue No. 1 was framed. As I have already said there being no proper proceedings under the Act and there being no valid order under the Act, there was no question of a suit being filed to challenge that order. The conclusion, therefore, is that there being no valid order of redemption, the trial Court was fully justified in decreeing the Plaintiff''s suit

The result, therefore is that both these appeals are allowed, the decision of the District Judge is set aside and that of the trial Court restored. The Appellant will have his costs in this Court.