Appeal No 1115 of 1966
Appeal by special leave from the judgment and decree dated November 18 1965 of the Punjab High Court in Regular Second Appeal No 1169 of 1962
Rameshwar Dial and 4
D Mathur for the appellants
KS Chawla KL Mehta and SK Mehta for respondents Nos 1 to 7
The Judgment of the Court was delivered by Shah J
Ram Sarup was the owner of a piece of land measuring 30 bighas 12 biswas
By a deed dated August 16 1935 Ram Sarup mortgaged without possession a part of the land measuring approximately 26 bighas with one Meda
Ram Sarup on November 27 1941 mortgaged with possession the entire area of the land to Ananda
Ram Sarup then sold his rights in 27 bighas and 1 biswa of the land on May 14 1943 to Buru and others who may be collectively called the plaintiffs  for Rs 6000
The plaintiffs then applied on May 23 1951 under section 4 of the Redemption of Mortgages Punjab Act 2 of 1913 for redeeming the mortgage in favour of Meda
This application was rejected on June 29 1951
Thereafter the plaintiffs instituted on August 20 1960 a suit in the civil court for redemption of the mortgage
The suit was resisted inter alia on the ground that the period of limitation prescribed by article 14 of the Indian Limitation Act 1908 had expired
It was submitted that the plaintiffs had moved an application for redemption of mortgage under section 4 of the Redemption of Mortgages Punjab Act 2 of 1913 but the same was dismissed oft June 29 1951 by the Assistant Collector and since no suit was filed within one year from that date the suit for redemption of the first mortgage in favour of Meda was barred
The Trial Court dismissed the suit for redemption of the mortgage in favour of Meda and granted a decree for redemption of the second mortgage dated November 27 1941
The plaintiffs appealed to the District Court Gurgaon
The District Court allowed the appeal and ordered redemption of the land including the mortgage in favour of Meda
The decree passed by the District Court was confirmed in second appeal by the High Court of Punjab With special leave this appeal has been preferred by sons of Meda
The record of the proceedings before the Assistant Collector was it was reported destroyed before the suit was filed and an 407 extract from the register of redemption applications could be tendered in evidence
The last column of the extract contained the entry The application is rejected and should be consigned to the record room
An endorsement on the docket maintained by the Advocate who appeared in the case before the Assistant Collector showed an endorsement dated June 29 1951 Application rejected
The petitioner has today been ordered to file a civil suit
 The Trial Court and the District Court held that the petition for redemption was not tried by the Assistant Collector he  rejected the petition holding that the application raised complicated questions of fact and law and on that account was not triable in exercise of the summary jurisdiction prescribed under Act 2 of 1913
With this view the High Court agreed
Counsel for the appellants contends that the order of the Assistant Collector rejecting the petition under section 4 of the Punjab Act 2 of 1913 became final by virtue of section 12 of the Act and the mortgagor could not sue to redeem the mortgage in favour of Meda after the expiry of one year from the date of the order
The relevant provisions of the Redemption of Mortgages Punjab Act 2 of 1913 may first be noticed
By section 4 it is provided The mortgagor or other 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 be redeemed and where the mortgage is with possession that he be put in possession of the mortgaged property
Sections 5 6 and 7 deal with the procedure to be followed in the trial of applications under the Act
Section 8 provides Where both parties appear when the petition is called on for hearing the Collector shall enquire from the mortgagee whether he admits that the petitioner is entitled to redeem whether he is willing to accept the sum in deposit in full discharge of the mortgage debt and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property
If the mortgagee replies in the affirmative the Collector shall make an order as laid down in section 6a b c and d of this Act
408 Section 9 on which reliance is primarily placed provides If the mortgagee raise s objection on any ground other than the amount of the deposit or if the petitioner is not willing to pay the sum demanded by the mortgagee the Collector may either a for reasons to be recorded dismiss the petition or b make a summary enquiry regarding the objection raised by the mortgagee or regarding the sum due
 Section 10 provides for enquiry into objections raised by the mortgagee and section 11 provides for enquiry regarding the sum due under the mortgage and further provides for making deposit by the mortgagor within the period to be fixed by the Collector
Section 12 provides by the first paragraph 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
 Article 14 of Sch 1 of the Limitation Act 1908 provides that a suit to set aside any act or order of an officer of Government in his official capacity not herein otherwise expressly provided for shall be filed within one year of the date of the act or order
We are unable to agree with the appellant s contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector the order dismissing the application was conclusive and the suit for redemption by the plaintiffs was not maintainable
Section 91aof the Act authorises the Collector or dismiss the petition for reasons to be recorded where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee
There is no evidence that the mortgagor declined to pay the sum demanded by the  mortgagee
Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him
He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding
Such an order in our judgment does not fall within the terms of section 9 of Act 2 of 1913
Even if by the order the petition was dismissed not the form of the order but its substance will determine the application of the period of limitation prescribed by article 14 of the Limitation Act
An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption for it raises no cloud on the title of the mortgagor arising out of the mortgage
Such 409 an order is not one which is required to be set aside
An order required to be set aside is one which the officer making it has jurisdiction to make and has the effect of barring the claim for relief unless it is set aside
The order of the Assistant Collector merely declared the rights of the plaintiff under the common law It did not bar the claim to relief_ for redemption in a civil suit and on that account it was not an order which was required to be set aside
Tulsi Das vs Diala Ram1 Tek Chand J delivering the principal judgment of the Court dealt with the question which falls to be determined in this case
The learned Judge observed   the suit referred to in section 12 is to establish the erroneous nature of the order 
Now what is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit  No civil court can grant a declaration that the Collector s view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry
The order of the Collector does not affect the rights of the parties in any way it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie
No suit under section 12 being necessary or competent there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinary course
 The same view was expressed in a judgment of the Punjab High Court Dewan Chand vs Raghbir Singh2
The Court in that case pointed out in our judgment rightly that article 14 of Sch 1 to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government
When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court the Collector s decision does not stand in the way of the suit for redemption
The appeal fails and is dismissed with costs
RKPS Appeal dismissed
1ILR 2 ILR 1966 1 Punjab 193


Summary:
In August 1935 the owner of a piece of land mortgaged a part of it without possession to M
In November 1914 he mortgaged the entire area of the land to A
Thereafter he sold his rights in the land except in a small area in May 1943 to the plaintiffs
In May 1951 the plaintiffs applied under section 4 of the Redemption of  Mortgages Punjab Act 2 of 1913 for redeeming the mortgage in favour of M but this application was rejected by the Assistant Collector on June 29 1951
A suit filed by the plaintiffs in August 1960 in a civil court for redemption of the mortgage was resisted inter alia on the ground that it was time barred by virtue of article 14 of the Limitation Act 1908 as it was not filed within one year of the rejection of the application by the Assistant Collector
The trial court dismissed the suit for redemption of the mortgage in favour of M and granted a decree for redemption of the second mortgage of November 1941
The District Court allowing an appeal ordered redemption of the land including the mortgage in favour of M and this decision was confirmed in second appeal by the High Court
There was a concurrent finding by the courts below that the petition for redemption was not tried by the Assistant Collector on the merits but that he rejected it holding that the application raised complicated questions of fact and law and on that account was not triable in exercise of  the summary jurisdiction prescribed under Act 2 of 1913
On appeal by special leave to this Court
HELD Dismissing the appeal
The suit for redemption filed by the plaintiffs was not barred by the Law of Limitation
The Assistant Collector merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding Such an order does not fall within the terms of section 9 of Act 2 of 1913
Even if by the order the petition was dismissed not the form of the order but its substance will determine the application of the period of limitation prescribed by article 14 of the Limitation Act
An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption
for it raises no cloud on the title of the mortgagor arising out of the mortgage
Such an order is not one which is required to be set aside
An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside
410 F H L2SupCI70 14 406 Tulsi Das vs Diala Ram ILR 1944 Lab 1 FB and Dewan Chand vs Raghbir Singh ILR 1966 1 Punjab 193 referred to and approved