Tundal (Dead) By L.Rs. & Ors vs Munshi & Ors

The plaintiffs 6 and 7 filed Civil Suit No. 565/1974 for the redemption of the suit land, which came to be dismissed on 13th December, 1976 by the Revenue Court. The appellant No. 1-defendant No. 1 in the present civil suit, was reluctant to release the suit land after receipt of the amount of mortgage, so the plaintiffs-respondents instituted the present suit impleading defendant Nos. 2-9 as proforma defendants- appellants herein as they were not available at the time of filing of the earlier suit.

The suit was resisted and contested by original defendant-appellantTundal (now dead). The other defendants-appellants 3 to 5 and 7 to 10 in their written statement have admitted the claim of the plaintiffs- respondents and also pleaded that they are entitled to get their respective shares in the suit land after redemption. The original defendant-Tundal raised preliminary objections inter alia that the mortgaged amount was Rs. 2,200/- and not Rs. 825/-; the plaintiffs or defendant Nos. 2 to 9 are not legal heirs of Smt. Mohori and as the plaintiffs' suit under Section 4 of the Punjab Redemption of Mortgages Act, 1913 (for short "the Act") was dismissed by the Court therefore, the right of redemption of the plaintiffs had extinguished and, the suit of the plaintiffs was liable to be dismissed. The main defence pleaded by the defendant No. 1 was that the suit was time barred as the order of the Collector under the Act was recorded on 30th July, 1974 and that the present suit was filed after the stipulated period of one year. On the pleadings of the parties, the Trial Court framed as many as ten issues, which were reproduced by the learned Single Judge in his judgment and we do not think it necessary to reproduce them again for unnecessarily burdening the record. The learned Trial Court passed preliminary decree in favour of the plaintiffs for redemption of the suit land subject to the condition of the payment of Rs. 825/- to defendant appellant No. 1 on or before 28th July, 1983.

Being aggrieved against the judgment and decree of the Trial Court, defendant No. 1 preferred appeal which came to be dismissed by the First Appellate Court confirming the judgment and decree of the Trial Court. Defendants- appellants filed four Regular Second Appeals before the High Court, which came to be dismissed by a single judgment and decree impugned in these appeals.

The above extracted paragraph of the judgment lays down that if no suit was filed within a period of one year, the findings of the Collector become conclusive between the mortgagee and the mortgagor and it is not open to assail the order of the Collector after one year in a suit of foreclosure or sale by the mortgagee. Section 12 of the Act prohibits the substance of the order and not the form in which the order is couched by the Collector. Even if by the order, the petition is dismissed not the form of the order but the substance will determine the application of the period of limitation prescribed by the Limitation Act. In support of our view, we are fortified by the decision of this Court in Shivlal & Ors. Vs. Sultan & Ors. [(1969) 2 SCC 883]. In the facts and circumstances of the case and in the light of the above-settled proposition of law, we do not find any perversity or illegality in the judgment and decree of the courts below warranting interference in these appeals.

In result, for the foregoing reasons, the appeals are devoid of merits and are dismissed accordingly. Parties are left to bear their own costs.