Letters Patent Appeal No.647 OF 2001 ******* Against the judgment and order dated 21.05.1996 Passed in CWJC no. 5177 of 1986. ******* Khurshid Alam & ORS----------------Appellants Versus THE STATE OF BIHAR & ORS----------Respondents ******* For the Appellants : M/s Shashi Shekhar Dwivedi & Khatim Raza For the Respondent : Mr. Sandeep Kumar ******* P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Barin Ghosh & J.N. Singh, JJ. The predecessors of the appellants applied to the Authority named in the Bihar Money Lenders Act, namely, Deputy Collector, Land Reforms, seeking delivery of possession of the land which was under usufructuary mortgage of the writ petitioners- respondents on the ground that by reason of section 12 of the said Act the said 2 usufructuary mortgage has come to an end. The said application was allowed by an order dated 05th December, 1977, when neither the petitioners-respondents appeared, nor any one on their behalf appeared before the Deputy Collector, Land Reforms. Subsequently, the petitioners-respondents approached the Deputy Collector, Land Reforms, with an application seeking to contend that before the order dated 05th December, 1977 was passed they were not informed of filing of the application by the predecessors of the appellants. The Deputy Collector, Land Reforms, found that notice of the said application was sent to the petitioners-respondents by registered post, but, as appears from the endorsement made on the envelop containing such notice, the petitioners-respondents refused to accept the same. In those circumstances, the said 3 application of the petitioners-respondents for recalling the said order dated 05th December, 1977 was rejected. The petitioners-respondents then filed an appeal but in the appeal did not challenge the order dated 05th December, 1977 on merits. The appeal was confined only to the order rejecting the application for recalling the said order dated 05th December, 1977. The appeal having been dismissed, for the reason the said application for recalling the order dated 05th December, 1977 was dismissed, petitioners-respondents approached this Court by filing a writ petition. In the writ petition the predecessors of the appellants were made parties, who during the pendency of the writ petition, i.e, in between 1986 and 1996, died. No step was taken to substitute the deceased respondents in the writ petition. The writ petition was 4 taken up for consideration on 21st May, 1996, when it was stated that since the mortgage deed is dated 16th June, 1903, as on the date of coming into force of the said Act, i.e., on 17th August, 1977, the mortgage was not subsisting and, accordingly, section 12 of the Act would have no application in relation to such a non-subsisting mortgage. On that basis it was submitted that, in such view of the matter, the order dated 05th December, 1977 was erroneous. Accepting such submission the writ petition was allowed. Since the petitioners-respondents did not annex a copy of the mortgage deed, the learned Judge had no occasion to look into the same. A look at the mortgage deed would reveal that the predecessors of the appellant had time until April/May, 1955 to redeem the mortgage. That being the situation, and since the said Act came into 5 force on 17th August, 1977, the right to redeem the said mortgage was still alive as on the date of coming into force of the said Act and had not become barred by limitation and, in such view of the matter, section 27 of the Limitation Act had no application in relation thereto. In those circumstances, taking serious view of the matter, that the respondents in the writ petition, who were likely to be affected, had not been substituted and the mortgage deed upon which submissions had been made was not brought on the record of the writ court, while we allow the appeal, set aside the judgment and order under appeal and dismiss the writ petition, propose to impose exemplary cost against the petitioners- respondents. The learned counsel for the appellants submitted that despite the order 6 under appeal, possession of the land handed over to the appellants in terms of the order dated 05th December, 1977, has not been interfered with and, accordingly, we have restrained ourselves from imposing such cost. (Barin Ghosh, J.) (J.N. Singh, J.) Patna High Court, The 15th July, 2008. AAhmad/(NAFR).