RSA No.1053 of 1981 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1053 of 1981 Date of Decision: 25.01.2010 Sawan Singh (dead) through LRs and Anr. ..Appellants Vs. Dalip Singh ..Respondent CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Naresh K.Joshi, Advocate, with Mr.RVS Chugh, Advocate, for the appellants. Mr.Kanwaljit Singh, Sr.Advocate, with Ms.Prachi Sharma, Advocate, for the respondent. --- Vinod K.Sharma,J. (Oral) This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 24.12.1980, passed by the learned courts below, vide which suit filed by the plaintiff/respondents for declaration to challenge the order passed by the learned Collector under Section 6 of the Redemption of Mortgage Act, 1913 (for short the Act), was RSA No.1053 of 1981 2 allowed. Appellants/defendants moved an application under Section 6 of the Act, for redemption of mortgages. Application was allowed by the learned Collector and order of redemption was passed. Plaintiff/respondents being aggrieved, challenged the order passed by the learned Collector before the learned civil courts below under section 12, of the Act. The ground to challenge the order of learned Collector, was that the application for redemption was hopelessly barred by limitation and that the learned Collector had committed an error, in treating the entries in revenue record to be acknowledgment so as to hold that the application was within time. Suit was contested wherein averments made in the plaint were denied . On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the application before the Collector was within limitation? OPD 2. Whether the impugned order of the Collector was void being against law and fact? OPP 3. Relief. Issues No.1 and 2 were taken up together, and on appreciation of evidence, specially in view of the fact that the acknowledgment of mortgage was accepted in view of the revenue entries, it was held that these entries can not be termed as acknowledgment, in the absence of clear and RSA No.1053 of 1981 3 unequivocal admission. Issue No.1 was decided in favour of the plaintiff and against the defendant. It was held that the application moved by the defendant-appellant was barred by limitation. Consequently, it was also held the order of Collector was void and against law and facts. Suit filed by the plaintiff/respondents was decreed. In appeal, findings recorded by the learned trial court were affirmed and appeal was dismissed. This court allowed the regular second appeal on 18.9.2001 by recording as under:- “ Respondent/plaintiff filed a suit for declaration that the order of the Collector, dated 17.9.1975 ordering redemption was void on the ground that the application for redemption made in the year 1974 was barred by limitation. It was stated that the defendants mortgaged the suit land with possession with the plaintiffs on various dates starting from the year 1919 and after expiry of period of 30 years, limitation for redemption came to an end. Defendant-appellants contested the suit and submitted that there was acknowledgment which extended limitation. Reference was made to mutations recording the mortgage. Trial court held that mutation could not operate as acknowledgment, Appellate court dismissed the appeal. Learned counsel for the appellants submitted that the original mortgage was for a loan of Rs.530/- executed on RSA No.1053 of 1981 4 Harbadi 12 Samat 1976 (equal to 1919 A.D.). It is submitted that subsequently more loan was taken and fresh mortgages were created. While some land was released by way of redemption and last redemption being dated 13.11.1956 A.D. evidenced by mutation dated 14.6.1957, limitation for redemption cannot be said to have expired. Reference is also made to certain other transactions. Learned counsel for the appellants further submitted that even if the case set up by the plaintiffs is taken into account, there is a mortgage with possession and the plaintiffs have been enjoying the fruits of the land. The plaintiffs were liable to adjust the fruits of the land towards interest as well as the principal and in view of the statutory changes, which prevailed upon the contract, rate of interest could not be in excess of the rate prescribed by the statute, and in any case could not be double the principal amount. In absence of any accounts which were to be rendered by mortgagees, the mortgagees should be deemed to have adjusted the principal as well as interest and could not seek a declaration that the mortgagees had become owners and right of redemption was extinguished. It is submitted that a fresh cause of action for redemption accrues on adjustment of the loan amount as held by the Supreme Court in vaideswara Iyer and another Vs. Kamakshi Ammal and others 1994 Supp. (2) SCC 524 (para 4). Reliance is also placed on the RSA No.1053 of 1981 5 decision of this court rendered in Regular Second appeal No.2131 of 1979 (Smadh Baba Narain Dass Vs. Surta and others) decided on 29.8.2001. In the latter case, the issue was considered at length in the light of the statutory provisions applicable and the relevant case law. Learned counsel for the respondents supported the findings of the courts below and submitted that the order of redemption was liable to be set aside being barred by limitation. After hearing learned counsel for the parties, I am of the view that this appeal deserves to succeed in view of the decision in RSA No.2131 of 1979 aforesaid wherein it was held that the mortgagor will get a fresh cause of action from the date the mortgage amount was adjusted out of the produce and the right of the mortgagor will not be extinguished till the mortgagees render the account. It was also held that income from the land had to be adjusted against the principal. Since the courts below have taken limitation to have commenced from the date of the mortgage without considering the question of start of fresh limitation from the date of adjustment of the amount, declaration of mortgagees having become the owners, is not legally tenable. In view of the above, this appeal is allowed. Decree of the courts below is set aside and the suit filed by the respondents is dismissed. There will be no order as to costs.” RSA No.1053 of 1981 6 Plaintiff/respondents challenged the order passed by this court by way of Civil Appeal No.6084 of 2002 before the Hon'ble Supreme Court. Hon'ble Supreme Court allowed the appeal, for the reason that while allowing the regular second appeal substantial question of law was not framed by this court. The regular second appeal was remanded back by the Hon'ble Supreme Court vide order dated 16.4.2009 to reconsider the appeal and in case any substantial question of law was involved it be framed and appeal disposed of accordingly. Learned counsel for the appellant contends that the appeal raises the following substantial questions of law for consideration by this court: 1. Whether there is any limitation for redemption of the mortgage? 2. Whether the judgment and decree passed by the learned courts below is perverse and is the outcome of wrong interpretation of law? In support of substantial questions of law, learned counsel for the appellants vehemently contended, that the learned courts below committed an error in coming to the conclusion that the application filed by the appellant/defendants before the learned Collector was barred by limitation, whereas in fact there is no limitation to redeem usufractuary RSA No.1053 of 1981 7 mortgage. In support of the substantial questions of law, learned counsel for the appellant placed reliance on the Full Bench judgment of this court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors. 2008 (1) RCR (Civil) 334, wherein Full Bench of this court has held as under:- “42. Therefore, we answer the questions framed to hold that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable.” In view of the authoritative pronouncement of this court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors. (supra) substantial questions of law are answered in favour of the appellant. Consequently, this appeal is allowed. The judgment and decree passed by the learned courts below are set aside and the suit filed by the plaintiff/appellants ordered to be dismissed, but with no order as to costs. (Vinod K.Sharma) 25.01.2010 Judge rp