Case: Sheo Lal And Ors Vs. Sultan &amp; Ors

and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is with possession that he be put in possession of the mortgage property.* * *Sections 5, 6 and 7 deal with the procedure to be followed in the trial of applications under the Act.Section 8 provides:"where both parties appear when the petition is called on for hearing, the Collector shall enquire from the mortgagee whether he admits that the petitioner is entitled to redeem, whether he is willing to accept the sum in deposit in full discharge of the mortgage debt, and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property.If the mortgagee replies In the affirmative, the Collector shall make an order as laid down in Section 6 (a), (b), (c) and (d) of this Act.* * * *"Section 9 on which reliance is primarily placed provides:"If the mortgagee raises objection on any ground other than the amount of the deposit, or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector may either (a) for reasons to be recorded dismiss the petition, or (b) make a summary enquiry regarding the objection raised by the mortgagee or regarding the sum due."Section 10 provides for enquiry into objections raised by the mortgagee and Sec. 11 provides for enquiry regarding the sum due under the mortgage and further provides for making deposit by the mortgagor within the period to be fixed by the Collector. Section 12 provides by the first paragraph:"Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive."Article 14 Schedule I of the Limitation Act, 1908, provides that a suit to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for, shall be filed within one year of the date of the act or order.6. We are unable to agree with the appellants contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable. Section 9 (1) (a) of the Act authorises the Collector to dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.Such an order, in our judgment, does not fall within the terms of Sec. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside The order of the Assistant Collector merely declared the rights of the plaintiff under the common law, it did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be set aside.7. In Tulsi Das v. Diala Ram, ILR (1944) Lah 1 = (AIR 1943 Lah 176) (FB), Tek Chand, J., delivering the principal judgment-of the Court dealt with the question which falls to be determined in this case, The learned Judge observed :"..........the suit referred to in Sec. is to establish the "erroneous nature of the order". Now what is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit? No civil court can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry. The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie. No suit under Section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinary course."The same view was expressed in a judgment of the Punjab High Court Dewan Chand v. Raghbir Singh, ILR (1966) 1 Punj 193 = (AIR 1965 Punj 502). The Court, in that case pointed out, in our judgment rightly, that Art. 14 of Sch. I to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government. When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collectors decision does not stand in the way of the suit for redemption.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. We are unable to agree with the appellants contention that since no suit was filed within one year of the date on which the application of the plaintiffs was rejected by the Assistant Collector, the order dismissing the application was conclusive, and the suit for redemption by the plaintiffs was not maintainable. Section 9 (1) (a) of the Act authorises the Collector to dismiss the petition for reasons to be recorded, where the mortgagee raises objection on a ground other than the amount of deposit or if the mortgagor is not willing to pay the sum demanded by the mortgagee. There is no evidence that the mortgagor declined to pay the sum demanded by the mortgagee. Again the Assistant Collector did not pass an order dismissing the petition for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be tried in a summary proceeding.Such an order, in our judgment, does not fall within the terms of Sec. 9 of Act 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside The order of the Assistant Collector merely declared the rights of the plaintiff under the common law, it did not bar the claim to relief for redemption in a civil suit, and on that account it was not an order which was required to be setwhat is the error committed by the Collector in his order which the mortgagor must seek to have set right by a declaratory suit? No civil court can grant a declaration that the Collectors view that the matter was too difficult for summary redemption was wrong and compel him to proceed with the summary enquiry. The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie. No suit under Section 12 being necessary or competent, there was no bar to the mortgagor suing for redemption in the civil courts within the period allowed by law in ordinaryCourt, in that case pointed out, in our judgment rightly, that Art. 14 of Sch. I to the Limitation Act does not apply to a suit which does not seek to set aside the order of an officer of the Government. When the Collector decides nothing against the mortgagor and directs that the matter be settled in a civil court, the Collectors decision does not stand in the way of the suit for redemption.