R.S.A. No. 788 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 788 of 2009 (O&M) Date of decision: 18.05.2009 Smt. Naginder Kaur @ Devinder Kaur ....appellant versus Bachan Kaur and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. J.S. Chahal, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 2249-C of 2009 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 50 days in refiling the appeal. For the reasons stated in the application, C.M. is allowed and the delay of 50 days in refiling the appeal is ordered to be condoned. C.M. No. 2250-C of 2009 This is an application under Section 149 of the Code of Civil Procedure for making good the deficiency in Court fee. For the reasons stated in the application, C.M. is allowed and the delay in making good the deficiency in Court fee is condoned. R.S.A. No. 788 of 2009 This regular second appeal is directed against the judgment R.S.A. No. 788 of 2009 (O&M) -2- and decree dated 18.8.2008 passed by the learned Courts below, vide which the suit filed by the plaintiff/appellant for possession by way of redemption of land measuring 25 kanals 16 marlas, has been ordered to be dismissed. The plaintiff/appellant brought a suit on the pleadings, that Kartar Singh S/o Kehar Singh, husband of the plaintiff, had mortgaged pre-consolidation land, in lieu of which land measuring 25 kanals 16 marlas was carved out with possession and mutation No. 46907 was sanctioned. Sunder Singh mortgagee sold his mortgagee rights to Ram Singh vide registered mortgage deed dated 21.5.1959. The transaction of mortgage was said to operate as acknowledgement within the meaning of Section 18 of the Indian Limitation Act, 1963. The plaintiff claimed that as no period of redemption was prescribed in the mortgage, therefore, it was redeemable at any time. The plaintiff/appellant being widow of original vendor i.e. Kartar Singh, claimed that she was entitled to redeeem the land on payment of mortgaged amount of Rs.1900/-. It was the case of the plaintiff/appellant that the defendants were the legal heirs of Ram Singh subsequent mortgagee, but they refused to accept the request of the plaintiff. The suit was contested by raising preliminary objection that suit of the plaintiff was barred by principle of res judicata, as the subject matter in the present suit already stood decided by the Civil Judge (Junior Division), Moga in civil case No. 304 dated 17.8.1992 decided on 28.11.1997 titled as Wasakha Singh Vs. Davinder Kaur. The plaintiff in collusion with defendant No. 6 had also filed civil suit No. 427 dated 25.5.1991 titled as Guddi Vs. Wasakha Singh decided on 23.1.1995, R.S.A. No. 788 of 2009 (O&M) -3- which was also dismissed. The appeal filed by the plaintiff and defendant No. 6 was also dismissed. On merits, defense was taken that the plaintiff's right of redemption was barred as the matter in issue stood already decided by the Court. Defendants No. 1 to 5, 7 and 8, i.e. legal heirs of Ram Singh, became owners of the suit land vide judgment and decree dated 28.11.1997. The right of redemption stood extinguished. The learned Courts below in view of the previous judgment and decree, have been pleased to hold that the suit filed by the plaintiff/appellant was barred by principle of res judicata and dismissed the suit. Mr. J.S. Chahal, the learned counsel for the appellant contends, that the appeal raises the following substantial questions of law: - "1. Whether the learned Courts below mis-applied the settled law that there was no limit prescribed for redemption? 2. Whether the learned Courts below committed an error in law, in holding the suit to be barred by principle of res judicata?" In support of the substantial questions of law, the learned counsel for the appellant contends, that it has been authoritatively laid down by the Hon'ble Larger Bench of this Court, that there is no limitation prescribed for redemption of mortgage. Therefore, the decree passed in favour of Wasakha Singh was on the face of it null and void and could not operate as res judicata against the right of the plaintiff/appellant to redeem the land. R.S.A. No. 788 of 2009 (O&M) -4- It is also the contention of the learned counsel for the appellant that the previous judgment and decree being not based on correct law, could not operate as res judicata, to deny the right of redemption, specially when no limitation is prescribed for redemption of mortgage. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. The contentions raised are against the settled principles of law. That with change of law settled matter cannot be reopened. Wasakha Singh had filed a suit seeking declaration that he is owner in possession of the property as right of redemption of the predecessor-in-interest of the plaintiff/appellant stood extinguished with lapse of time. The suit was decreed, and has attained finality. In view of the previous judgment and decree inter se parties, the learned Courts below rightly held the suit filed by the plaintiff/appellant to be barred by principle of res judicata. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 18, 2009 R.S.