IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1934 of 1979 (O&M) Date of decision:13.12.2011 Ram Bhaj and others ...Appellants versus Ishwar Dass (deceased) and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. CB Goel, Advocate, and Mr. Nitin Jain, Advocate, for the appellants. None for the respondents ---- K.Kannan, J. (Oral) 1. The case requires consideration in a proceeding challenging the order of the authority constituted under the Redemption of Mortgagees' Act of 1913 allowing for the defendants to redeem the mortgage on payment of a certain sum of money. The mortgagee filed the suit contending that the determination of the mortgage amount was erroneous and sought for quashment of the said order. The trial Court accepted the plaintiff's contention that the amount had not been properly determined but still held that the lesser remedy of recovery of possession granted to the defendants was justified. In appeal by the plaintiff, the appellate Court reversed the decision saying that once the determination of the amount found by the authority was found to be erroneous, the relief of recovery of Regular Second Appeal No.1934 of 1979 (O&M) - 2 - possession could not be passed. It is against this decision that the defendant has come on appeal. 2. It is rather strange that in a case where the trial Court had found that the amount determined by the authority under the Redemption of Mortgagees' Act was not properly made, it could be contended that as a consequence, even the relief of recovery of possession could be defeated. In all cases relating to mortgagees, the Code of Civil Procedure itself provides for two stages: (i) determining the rights of parties by granting a preliminary decree and (ii) relegating the issue of actual determination at the stage of passing of final decree. A wrong determination of the amount can never defeat the right of mortgagor to redeem the mortgage and secure possession of property. If the possession had been ordered to be granted by the authority in exercise of the right of the mortgagor to redeem, a modification of the amount payable, as determined by the trial Court could not have resulted in a further modification of denying the relief of recovery of possession. The appellate Court judgment was clearly erroneous. It is set aside and the trial Court's judgment is restored. The appeal filed by the defendant is allowed with cost. (K. KANNAN) JUDGE 13.12.2011 sanjeev