IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 1954 of 2002 Date of Decision: December 21, 2011 Suleman …Petitioner Versus Collector, Ferozepur Jhirka, Gurgaon and others. …Respondents CORAM: HON’BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Sachin Mittal, Advocate, for the petitioner. Mr. Sandeep S. Mann, Sr. DAG, Haryana, for respondent No.1. Mr. C.B. Goel, Advocate, for respondent Nos. 2 to 5. Paramjeet Singh, J. This writ petition has been filed by the petitioner for quashing of order dated 10.12.2001 (Annexure P/9) passed by the Collector, Ferozepur Jhirka, District Gurgaon - respondent No.1, whereby restoration of possession to the private respondents has been ordered. Brief facts of this case are that Ahmed Khan, father of the petitioner and Hasmat Ishmail owners-mortgagors, mortgaged land measuring 10 kanals 18 marlas comprised of Killa No. 3//1(3- 0), 8//7(4-0), 14(3-18) situated in Village Patakpur Ferozepur, Tehsil Ferozepur Jhirka, District Gurgaon, for a sum of Rs. 600/- in favour of Karamat Khan, father of respondent Nos. 2 to 4 and mutation No. 187 dated 04.01.1967 was sanctioned. It is pertinent to mention here that after partition, land measuring 7 kanals 1 Marlas CWP No.1954 of 2002 comprised in Killa No. 8//7 and 14 has come to the share of the petitioner Suleman son of Ahmad Khan and Khasra No. 3//11 (3-0) has come to the share of Hasmat, who sold the said land with mortgagee rights, in favour of respondent No.5 – Noor Mohamad. For redemption of the land in question, the petitioner filed a petition under Section 4 of the Redemption of Mortgagees (Punjab) Act, 1913 (hereinafter referred to as the Act). The same was allowed by the Collector, Ferozepur Jhirka vide order dated 27.05.1993. Vide order dated 02.02.2006 of this Court, the petitioner had sought time to place on record copy of order dated 27.05.1993 and this Court had also directed respondent Nos. 2 to 4 to file copy of the application filed before the Collector for seeking re- possession along with copy of the suit as well as written statement. In pursuance to that order, these documents are available on record from pages 61 to 68 of the paper-book. Admittedly, order dated 27.05.1993 has been passed under Section 7 of the Act and it was an ex-parte order and was never got set aside under Section 12 of the Act. Instead of moving application to set aside exparte order before the Collector, Karamat Khan, filed a suit for declaration with consequential relief of permanent injunction for setting aside the redemption order dated 27.05.1993. Copy of the interim order dated 12.06.1993 (Annexure P/1) passed by the Civil Court is on record. The appeal preferred by Karamat Khan against interim order dated 12.06.1993 before the Additional District Judge, Gurgaon, was disposed of vide order dated 06.12.1995 (Annexure P/2). In execution of order of redemption dated 27.05.1993, possession was delivered to the petitioner vide rapat roznamcha 2 CWP No.1954 of 2002 dated 22.04.1998 (Annexure P/3) when there remained no legal impediment for delivery of possession. Thereafter, mutation has been sanctioned in the name of the petitioner. After delivery of the possession to the petitioner, Karamat Khan filed an application dated 30.04.1998 (Annexure P/5) for restitution of possession alleging that it was wrongly delivered to the petitioner on 22.04.1998. To the said application, petitioner filed reply (Annexure P/7) denying the averments and the right of the respondents to file such an application. It is also mentioned in the reply to the application for restoration that applicant – Karamat Khan had also filed a civil suit to challenge order of Collector dated 27.05.1993 and in that suit, a restoration application was also filed, so he cannot seek same remedy simultaneously. I have heard learned counsel for the parties and perused the record. Admittedly, land measuring 10 kanals 18 marlas situated in Village Patakpur Ferozepur, Tehsil Ferozepur Jhirka, District Gurgaon was mortgaged with possession by Ahmed Khan, father of the petitioner, and Hasmat Ishmail in favour of Karamat Khan, father of respondent Nos. 2 to 4, in the year 1961-62 and mutation No. 187 to that effect had been sanctioned and entry reflected in the revenue record. The redemption application was allowed by the Collector vide order dated 27.05.1993. The operative part of order dated 27.05.1993 reads as under:- “Therefore, the land in dispute comprised in Killa Nos. 3//1 (3-0), 8//7 (4-0), 14(3-18) total measuring 10 Kanals 18 Marlas situated in Village Patakpur Ferozepur, Tehsil Ferozepur Jhirka is redeemed in favour of the petitioner. 3 CWP No.1954 of 2002 The petitioner will be mortgagee regarding Killa No. 3/11 (3-0) of which respondent is the owner/mortgagor. Respondent No.2 will be entitled to get his share in the land redeemed after making payment of the amount of his share. I order that the deposited amount of Rs.600/- be paid to the respondent No.1. Respondent No.1 may withdraw the mortgaged amount at any time.” In pursuance of the above redemption order, possession had also been delivered to the petitioner vide rapat roznamacha (Annexure P/3). Admittedly order dated 27.05.1993 is an ex-parte order. It was never got set aside. It has become final. Admittedly, Karamat Khan, father of respondent Nos. 2 to 4, had filed a civil suit No. 289 dated 12.06.1993 for declaration with consequential relief of permanent injunction for setting aside order dated 27.05.1993 passed by the Collector. It is also admitted that stay qua the delivery of possession was also granted in favour of Karamat Khan in civil suit. In the said suit filed by Karamat Khan, Suleman (petitioner) and one Noor Mohamad (respondent No.5 in the present writ petition), were respondent-defendants. On the asking of this Court, learned counsel for the parties failed to inform this Court about the fate of the civil suit. It is presumed that the said suit may have been dismissed. In the reply filed, it is mentioned that the Karamat Khan had filed an application for restoration of the civil suit. Till date, no order has been brought on record by the parties about the fate of civil suit, wherein order dated 27.05.1993 was challenged. Learned counsel for the parties have drawn the attention of this Court to para no.4 of the impugned order dated 10.12.2001 4 CWP No.1954 of 2002 (Annexure P/9) passed by the Collector whereby restoration of possession has been ordered. Many questions have been raised before the Collector as mentioned in this para. Learned counsel for the parties have submitted that two crucial questions arise in this case:- 1) Whether specific order for delivery of possession was required to be passed by the Collector, while passing redemption order dated 27.05.1993? 2) Whether the Collector could order restoration of possession to respondent Nos. 2 to 4 in spite of the fact that order dated 27.05.1993 has become final and had been executed and possession delivered to the petitioner? Facts as detailed above are not in dispute. Admittedly, Karamat Khan, father of respondent Nos. 2 to 4 was mortgagee. The petitioner is the son of the mortgagor. The petitioner had deposited the entire mortgage consideration, the mortgage was with possession. Admittedly, in execution of order dated 27.05.1993, possession has also been delivered to the petitioner vide rapat roznamcha dated 22.04.1998 (Annexure P/3) and the mutation was also sanctioned on that basis. The only right of the mortgagee in usufructuary mortgage is to receive the mortgage consideration paid at the time of mortgage. When mortgagor pays the mortgage money, a mortgagee is required to hand over the possession. In the present case, the mortgage was with possession, therefore, only the mortgage consideration was required to be paid by the mortgagor, now, mortgagor represented through his legal heir Suleman, the present petitioner. Under Section 7 of the Act, the Collector can pass an order when the mortgagee does not appear. This is a case where 5 CWP No.1954 of 2002 order dated 27.05.1993 has been passed under Section 7 of the Act. The said order is ex-parte. It has never been set aside by the Collector in pursuance of the provisions of Section 12 of the Act. It has become final. Karamat Khan, father of respondent Nos. 2 to 4, had filed a civil suit challenging order dated 27.05.1993. As already observed above, learned counsel for respondent Nos. 2 to 4 failed to produce the copy of any judgment and decree passed by Court in that civil suit. The only remedy before the mortgagee is to file a suit under Section 12 of the Act, if he is aggrieved by the order passed by the Collector under the provisions of the Act. Apparently, the suit filed by the predecessor-in-interest of respondent No.2 to 4 appears to have been dismissed. In spite of asking of the Court, none of the learned counsel for the parties was able to furnish information regarding decision or pendency of the suit. Learned counsel for the private respondents submitted that although the order of the Collector is final, but possession can not be delivered as specific order of delivery of possession was not passed by the Collector. Learned counsel for the respondents has relied upon a Division Bench judgment of Delhi High Court in the matter of Mir Chand vs. Devia, reported in 1971, P.L.J., 204, wherein it has been held that if the order is not in accordance with the provisions of the Act, only redemption has been ordered, but no order regarding possession has been passed, then that order cannot be of any benefit to the mortgagor –petitioner. I am not inclined to accept this contention of the learned counsel for the respondents that this judgment is applicable in the facts of the present case. In referred 6 CWP No.1954 of 2002 judgment, the Collector has specifically passed the order under Section 7 of the Act, where the respondents have raised a specific plea before the Collector. In the instant case, respondents never raised any plea before the Collector, rather, ex-parte order was passed. It would be appropriate to refer to the meaning of word “Redeem” in various dictionaries. In the Black’s Law Dictionary, the meaning of word “redeem” is “To buy back. To liberate an estate or article from mortgage or pledge by paying the debt for which it stood as security. To repurchase in a literal sense; as, to redeem one’s land from a tax-sale.” In the Chambers Dictionary, the meaning of word “redeem” is “to buy back; to act so as to settle or discharge (a burden, obligation, etc); to recover or free by payment; to free oneself from (a promise) by fulfillment; to ransom; to rescue, deliver, free; (of God or Christ) to deliver from sin; to get back; to reclaim; to exchange (tokens, vouchers, etc) for goods, or (bonds, shares, etc) for cash; to pay the penalty of; to atone for; to compensate for; to put (time) to the best advantage.” It is, therefore, clear that the word `redeemed’ as mentioned in order dated 27.05.1993 would amount to an order of giving back possession of mortgaged land. It is the substance of the order of the Collector which is to be seen. In a case of mortgage with possession only right of the mortgagee is to receive mortgage money. In this case that has been deposited by the petitioner. On the hypertechnical ground relief cannot be declined. So, I am of the definite opinion that when the 7 CWP No.1954 of 2002 Collector has passed order to `redeem’ that land, it includes delivery of possession also. Since I have held that delivery of possession is also included in the order of redemption, then the Collector cannot restore back possession delivered in execution of subsisting order of Collector. Another factor in this case is that after the passing of order of redemption, the Collector becomes functus officio. The Collector cannot review his order, as no power of review is available under the provisions of the Act. No other point has been raised or argued by the learned counsel for the parties. In view of the above, present writ petition is allowed. Impugned order dated 10.12.2001 (Annexure P/9) whereby restoration of possession to the respondents mortgagee is ordered to be set aside. There shall be no order as to costs. December 21, 2011 ( Paramjeet Singh ) vkd Judge 8