IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4252 of 2005 Date of Decision: 24.10.2008 Rameshwar Dayal and others .... Appellants vs. Mohan Lal and others .... Respondents Coram: Hon'ble Mr. Justice Rajive Bhalla. Present: Mr. Jai Vir Yadav, Advocate for the appellants. None for the respondents. Rajive Bhalla, J, (Oral) The appellants challenge the judgment and decree dated 1st October, 2005, passed by the District Judge, Rewari, accepting the appeal filed by the plaintiffs-respondents, setting aside the judgment and decree passed by the trial court and as a result decreeing the suit filed by the plaintiffs-respondents . One Rama Nand was owner in possession of the suit land. He along with Ram Chander mortgaged the suit land vide mutation No.170 sanctioned on 18th April, 1953 to Rang Rao s/o Gopal etc. for a sum of Rs.4,000/- on 12th April, 1953, The mortgagees in turn mortgaged the suit property to Sajjan Singh etc., for a consideration of Rs.4000/- as reflected in mutation No.251 dated 29th June, 1961. The mortgagors sold the suit property, to the extent of their share, by two registered sale deeds to the plaintiffs-contesting respondents No.1 to 8, who filed an application for redemption of the mortgage, before the Assistant Collector Ist Grade. The application was dismissed, vide order dated 23rd March, 1991 as barred by time. The respondents, thereafter, filed a suit for declaration praying for setting aside the order passed by the Assistant Collector Ist Grade. The appellants, contested the suit by denying the averments in the plaint and submitted that they had not acknowledged the mortgage as RSA No.4252 of 2005 -2- stated in the plaint. It was also asserted that as the application for redemption was barred by time, the application for redemption was rightly dismissed. On the basis of the pleadings of the parties, the learned trial court framed the following issues :- 1. Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP. 2. Whether the plaintiffs are entitled to the relief of possession through redemption as prayed for OPP. 3. Whether the suit of the plaintiffs is time barred? OPD. 4. Relief. After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that as limitation of thirty years, prescribed for redeeming the mortgaged property had expired, the application for redemption was rightly dismissed. Aggrieved by this judgment, the respondents filed an appeal. The District Judge, Rewari, accepted the appeal, set aside the judgment and decree, passed by the trial court and held that the application for redemption was wrongly dismissed, as barred by time, by the Assistant Collector Ist Grade as there is no limitation for redeeming a usufructuary mortgage. As a consequence the suit was decreed. I have heard counsel for the appellants and perused the impugned judgments. Counsel for the appellants submits that the period of limitation for redeeming the usufructuary mortgage commences from the date of mortgage. The first appellate court, therefore, committed an error in holding that there is no limitation for redeeming a usufructuary mortgage and as a result, erred while accepting the appeal and decreeing the suit. Admittedly, a usufructuary mortgage was executed on 12th RSA No.4252 of 2005 -3- April, 1953. The Assistant Collector Ist Grade, however, dismissed the application for redemption, as barred by time. The suit challenging the order passed by the Assistant Collector Ist Grade was dismissed by holding that limitation for redeeming the mortgage has expired and the order passed by the Assistant Collector Ist Grade is legal and valid. The first appellate court held that in the case of a usufructuary mortgage there is no limitation for filing an application for redemption. The period of limitation that governs an application for redemption, in a usufructuary mortgage, is the substantial question of law that arises for adjudication in the present case. This question came up for consideration before a Full Bench of this Court in 'Ram Krishan and others vs. Sheo Ram and others' 2008(1) PLR 1. The questions posed before the Full Bench were :- 1. Whether the right to seek redemption would arise on the date of mortgage itself in case of usufructuary mortgage when no time limit is fixed to seek redemption? 2. Whether there is any time limit in the case of a usufructuary mortgagor to get this property redeemed? The Full Bench answered the questions in the following terms :- “Thus, we prefer to follow the dictum of law laid down by the larger Bench in Seth Ganga Dhar's case (supra) as well as judgments of Hon'ble Supreme Court in Jayasingh Dnyanu Mhoprekar's case (supra), Pomal Kanji Govindji's case (supra), Panchanan Sharma's case (supra) and Harbans's case (supra) in preference to the judgments relief upon by the mortgagees in Prabhakaran's case (supra) and Sampuran Singh's case (supra). 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 RSA No.4252 of 2005 -4- 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.” It is, therefore, apparent that the question of law framed in the present appeal has been answered by the Full Bench against the appellants, by holding that where a usufructuary mortgage does not prescribe a period for redemption, the limitation for redeeming such a mortgage commences from the date the mortgagor pays or tenders to the mortgagee or deposits in court the mortgage money or the balance thereof and not from the date of the mortgage. The first appellate court, therefore, rightly held that the usufructuary mortgage subsists and the period of limitation for redeeming the mortgage has not expired. The judgment of the first appellate court does not suffer from any error as would require interference. The appeal is dismissed with no order as to costs. 24.10.2008 (Rajive Bhalla) sk Judge