TMI Blog1943 (1) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the mortgagee. Notice under Section 5 was sent to the mortgagee who appeared and stated that the land could not be redeemed as the principal sum had not become due, the term of twenty years not having expired. He also claimed that the amount due on the mortgage was much more than the sum deposited by the mortgagor. The Assistant Collector, Mr. Kayani, made a summary enquiry and rejected the petition with the following order: Defendants have produced the mortgage deed making it a condition that mortgage should not be redeemable for twenty years. The deed was executed on 22nd October 1910 and since the limit has not been passed the application for redemption is rejected. Deposit to be paid back to applicant. 2. By various transactions, which it is not necessary to detail here, the equity of redemption passed from Sundar Ram to Dayala Ram, defendant-respondent. On 12th July 1938, Dayala Ram as the successor-in-interest of the original mortgagor, presented before the Assistant Collector, another application under Section 4 of Act 2 of 1913, claiming redemption on payment of ₹ 600. The plaintiffs-appellants resisted the application on two groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was legal and correct. On the alternative claim, he denied that anything more than the sum allowed by the Collector was due. The Subordinate Judge first tried the issue as to whether the second application decided by the Collector on 3lst March 1939 was incompetent in view of the order of rejection of the first application by Mr. Kayani as no suit had been brought within one year from that date. He held that as Mr. Kayani had rejected the application as incompetent and not dismissed it on the merits, Section 13 did not apply and the application made in 1939 must be taken to be the only application made under the Act. He, therefore, decided this point against the plaintiff. The alternative claim was then tried and it was found that the plaintiffs were entitled to receive a sum of ₹ 490 over and above the amount allowed by the Assistant Collector. A declaration to this effect was, accordingly, granted and the 9 defendant directed to deposit ₹ 490 in Court by a certain date, when possession would be handed over by the plaintiffs to the defendant. 4. The plaintiffs appealed to the District Judge and urged again that the order of the Assistant Collector dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other person entitled to redeem was to sue for redemption in the civil Courts. In such suits he had to pay ad valorem court-fee on the principal sum secured and the proceedings in the Court, were, more often than not, protracted over a considerable period. It was considered that this procedure entailed hardship on the smaller class of mortgagors and in order to afford relief to them the Punjab Legislature passed this Act in 1913. Under this Act the mortgagor or other person entitled to redeem is allowed to apply to the Collector for an order for redemption on making a deposit of the amount which the petitioner declares, to the best of his belief, to be due under the mortgage and the Collector, on making a summary enquiry, may grant or refuse relief, as the circumstances require. 7. Section 1 limits the scope of the Act to mortgages of agricultural land, not exceeding a certain area, or in which (whatever the area) the principal amount secured does not exceed a certain Sub-section 2 is the definition clause and Section 3 makes some section of the Punjab Tenancy Act applicable to proceedings before the Collector under the Act. Section lays down the qualifications o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the principal money had not become payable, the petition could not be regarded as having been made under the Act nor was its dismissal under the Act and, therefore, the provisions of Section 13 are not attracted. Reference is made to Section 4, which lays down that the mortgagor or other person entitled to institute a suit for redemption may, at any time, after the principal money becomes payable and before the suit for redemption is barred, present a petition to the Collector applying for an order directing that the mortgage be redeemed, etc. 8. It is urged that the three conditions necessary for moving the Collector by petition under the Act are: (1) that the petitioner must be the mortgagor, or other person entitled to institute a suit for redemption, (2) that at the date on which the petition is made the principal mortgage money had become payable, and (3) that on that date a suit for redemption was not barred; and if the petition is dismissed by the Collector on the ground that one or other of these conditions has not been fulfilled, the dismissal is not under the Act and therefore, there is no statutory bar to the presentation of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not, in all cases, so simple as it was in the present case. Here, the terms of the deed were clear and explicit and admitted of no doubt whatever that redemption could not take place before the expiry of 20 years from the date of the mortgage. But cases frequently arise where the terms of the deed are not easy of interpretation; or where the mortgagor contends that though the period fixed in the deed has not expired, the conditions being onerous and operating as a clog or un-enforceable and that he is entitled to ignore them and claims redemption forthwith, but the Collector, after summary enquiry, holds against him and dismisses the petition as premature. The dismissal is plainly under the Act and Section 18 would clearly bar another application under the Act. 10. With regard to the particular case, in which the reference has arisen, two subsidiary points have been raised. It is urged that the Assistant Collector, Mr. Kayani, did not 'dismiss' the former petition but merely 'rejected' it and for this reason Section 18, which speaks of the 'order of dismissal' is inapplicable. This contention had found favour with the District Judge who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divergent views had been expressed by two Division Benches of this Court, as to the scope of Section 12 of the Act and the consequences of the failure of the mortgagor to bring a suit under that section. Section 12 enables a party aggrieved by an order passed by the Collector under Sections 6, 7, 8, 9, 10 or 11 of the Act to institute a suit to establish his rights in respect of the mortgage and lays down that, subject to the result of such suit, if any, the order shall be conclusive. It has already been pointed out, that no period of limitation for such a suit is prescribed in the Act, but the suit being, in substance, one to set aside the order of the Collector, is governed by Article 14, Limitation Act, and must bebrought within one year from the date of that order. If the suit is broughtwithin that period, the order passed in the suit will supersede the Collector's order and the rights of the parties will be governed thereby. If, however, the person adversely affected by the order fails to sue within one year, does he lose his right to e redeem or enforce the mortgage (as the case may be), simply because the Collector's order was one of dismissal or acceptance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Farbhu Mal v. Chandan A.I.R. 1938 Lah. 512 before Abdul Bashid J. sitting in Single Bench. There, also, the Collector had dismissed the application on the ground that it was improper for him to order redemption in summary proceedings as the matter was of some difficulty. Following Asa Ram v. Darba Mal A.I.R. 1929 Lah. 513, the learned Judge observed that though in order to strike off the application the Collector had stated that the application was dismissed, the substantive part of the order was not against the plaintiff and therefore, it was not necessary for the plaintiff to sue to set it aside under Section 12. The correctness of this decision was successfully challenged on appeal under the Letters Patent in Parbhumal v. Chandan A.I.R. 1938 Lah. 638. Addison and Din Mohammad, JJ. who heard the appeal, dissented from the view taken in Asa Ram v. Darba Mal A.I.R. 1929 Lah. 513 that it is only when a petition is dismissed by the Collector on the merits that the mortgagor must sue within one year. After examining the various provisions of the Act, they observed that Section 12 was widely worded and that it was impossible to draw a distinction between those orders which go to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal is not on the merits, but it is conceded that if no suit under Section 12 is brought by the mortgagor within one year, he would not be entitled to sue in the civil Court after the expiry of that period and seek redemption on payment of the amount fixed by the Collector. Again, if both parties are in attendance and by mutual agreement (under Section 8), or after enquiry by the Collector (under Section 11), a sum larger than the amount originally deposited is fixed as the sum payable, but the mortgagor fails to pay it within the time specified and the Collector dismisses the petition and the order of dismissal is not set aside by suit under Section 12, it is conclusive between the parties and the failure of the mortgagor to sue would entail the same serious consequences. Admittedly, in neither case can it be said that the order of dismissal was one passed on the merits of the dispute. Bhagat Ram v. Jamna Ram (29) 114 I.C. 447 was a case of this des' cription and as the mortgagor had failed to pay the amount fixed by the Collector within the time fixed under Section 11 and he had not sued within one year, his suit for redemption, brought some years later, was held barred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It must, therefore, be held that the mortgagor's suit in Asa Ram v. Darba Mal A.I.R. 1929 Lah. 513 was rightly decreed and that the contrary conclusion reached by the Single Bench in Darba Mal v. Asa Ram A.I.R. 1927 Lah. 461 and reaffirmed by the Division Bench in Parbhumal v. Chandan A.I.R. 1938 Lah. 638, that it is the form of the order of the Collector which has to be seen and not the substance of it, is erroneous. 17. In cases like the one before us where the Collector has dismissed the petition as pre-mature on the ground that the principal money had not become due, the position is exactly the same as in Asa Ram v. Darba Mal A.I.R. 1929 Lah. 513. Here, too, no such suit under Section 12 is necessary or competent. If, for instance, the term of the mortgage as fixed in the deed is 20 years and the mortgagor applies to the Col. lector for summary redemption after, say, eight years from the date of the mortgage and the Collector dismisses the petition as premature, what declaration can the mortgagor ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case or cover all orders irrespective of the fact whether they dispose of any question on the merits or not? 20. To these may now be added a third question, which according to my learned brethren naturally arises from them, namely: (3) Whether Article 14, Limitation Act, applies to all orders made under Sections 6 to 11 or to those only which adversely affect the rights of the mortgagor or the mortgagee in respect of the mortgage? 21. I agree in the final order proposed by my learned brother, but as my reasons are different I am constrained to write a separate judgment. Taking the first question, Section 4 enacts that the mortgagor or other person entitled to institute a suit for redemption may, at any time after the principal money becomes payable and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed. It also requires that the petition so presented shall be duly verified in the manner prescribed by law for the verification of plaints, and shall state the sum which the petitioner declares to the best of his belief to be due under the mortgage, and the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion, I may state that as already decided by a Full Bench of this Court composed of Tek Chand, Jai Lal and Monroe, JJ. in Gangu v. Mahanraj Chand A.I.R. 1934 Lah. 384, Article 14, Limitation Act, does apply to all suits instituted under Section 12 of the Act and the only thing that remains to be seen is whether it is open to distinguish between one kind of order and another in order to apply Article 14 thereto. My learned brother, Sir Tek Chand, is of opinion that we have to look to the substance of the order and not to its form and consequently any order which is not based on reasons which adversely affect the rights of the mortgagor or the mortgagee, need not be set aside within a year. But, with all respect, I do not see eye to eye with him on this matter. Section 12 contemplates orders under Sections 6, 7, 8, 9, 10 and 11 without any qualification whatever. Now an order of dismissal under Section 6 merely proceeds on the ground that the mortgagor is absent and although it does not refer at all to the merits of the case, a mortgagor is bound to institute a suit to establish his rights in respect of his mortgage. Similarly, under Section 7 a Collector is empowered to dismiss th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the conditions mentioned in Section 4, it may appear inconsistent on my part to rely on it despite the view expressed by me under question 1. This, however, is not the case. Section 9 read with Section 10 clearly contemplates an objection on this ground, but makes no mention of the premature filing of the petition, and a perusal of the judgment in Kaura v. Ram Chand A.I.R. 1925 Lah. 385 would show that that aspect of the case was never considered by the learned Judges. In the case before the Full Bench, too, a similar question was involved, and neither of these cases, therefore, comes into conflict with the view I have ventured to take in this case. I may further observe that in interpreting Section 4 in the manner in which I propose to do, one can avoid many anomalies, which are bound to arise otherwise. 25. On the grounds mentioned above, I would also hold under question 2 that orders under Section 12 are not confined to orders on merits alone but cover a much wider field, but as my learned brother, Sir Tek Chand, has also expressed a similar opinion, it is not necessary for me to develop that point any further. Before concluding, I would suggest that this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. Taken by itself, Section 12 does not appear to lay down anything more than that the orders of the Collector on the summary proceedings shall be subject to the result of an ordinary civil suit, if any. There is, however, the further question how soon the civil suit must be brought and whether the ordinary period of limitation is affected by any summary order which may have been passed in the meantime; and, in particular, whether the suit falls under Article 14. On this question there seem to be two possible lines of approach. One is to have regard only to the final effect of the order, that is the grant or refusal of summary redemption, without regard to the ground on which the order is based'. The other way is to have regard to the substance of the order, that is, to some decision reached by the Collector as a result of which redemption has been allowed or refused. In Kaura v. Ram Chand A.I.R. 1925 Lah. 385 it was clearly held by a Division Bench that in applying Article 14 regard should be had to the substance of the Collector's order. In that case the summary application had been dismissed on the ground that the mortgage had ceased to exist and that redemption wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther on account of his not being the original mortgagor or having lost his right owing to subsequent proceedings. Such a suit, according to Section 12, is merely to be a suit to establish a right, but it is obvious that unless it is instituted the order of the Collector becomes conclusive. The natural result of Such a suit, if decreed, would be that the order of the Collector is superseded. 30. As I understand the reasoning in Kaura v. Ram Chand A.I.R. 1925 Lah. 385 and Gangu v. Mahanraj Chand A.I.R. 1934 Lah. 384 the decisions seem to have reference only to those cases in which the aggrieved party is seeking to show that the order of the Collector is erroneous not merely because a summary remedy has been refused--a matter which it may often be impossible to bring into question in view of the very wide discretion which the Collector is allowed in deciding whether summary proceedings are suitable or not--but because the summary remedy has been granted or refused on some ground affecting the ordinary civil rights of the parties. Quite a different type of case came up for decision in Darba Mal v. Asa Ram A.I.R. 1927 Lah. 461. In this case the Collector had refused a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be mentioned. In Bhagat Ram v. Jamna Ram (29) 114 I.C. 447 an application for summary redemption had been dismissed on failure to deposit the full mortgage money within time. It was held that the decision in 6 Lah. 2061 applied. In Ali Mahomed v. Shah Tamaz Khan A.I.R. 1936 Lah. 692 the proceedings had been consigned to the record-room after an application had been made for stay of proceedings. In this case Asa Ram v. Darba Mal A.I.R. 1929 Lah. 513 was followed. The real question now for determination is whether the decision in Asa Ram v. Darba Mal A.I.R. 1929 Lah. 513 or that in Parbhumal v. Chandan A.I.R. 1938 Lah. 638 should be followed in cases such as has given rise to the present reference, when the plaintiff is not in effect seeking to set aside any decision given by the Collector as to the rights of the parties under the mortgage. As observed above, two views seem possible. One is to have regard to the final order by which a summary remedy is refused. But a person cannot bring a suit to establish a right to summary redemption, nor is this what Section 12 contemplates. No doubt a person whose summary remedy is refused would ordinarily be a person aggrieved by that order, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to any person adversely affected by an order of the Collector to bring a suit under Section 12 to establish his rights under the mortgage. This, however, is quite separate from the question whether such a suit is necessarily one to set aside the Collector's order. It has been suggested that the decision of the previous Full Bench in Gangu v. Mahanraj Chand A.I.R. 1934 Lah. 384 is conclusive on the question whether a suit brought by an aggrieved party in accordance with the provisions of Section 12 must be brought within one year, so the only question would then be whether a particular suit falls within the wording of that section or not; and, at first sight, this suggestion may seem to be in accordance with the actual wording of the question which was answered by the Bench in the affirmative. It seems to me, however, that a general question so referred and the answer thereto must be interpreted in the light of the order of reference and the reasons given in the final judgment. I have already given above a passage from the order of reference and I have indicated the reasons given for the answer; and I think that these make it sufficiently clear that the question and the answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in a more general form so as to apply to any order of dismissal or rejection on the ground that the application is premature. Since it seems to me that the answer to the question must depend on the view which one may happen to take of the orders passed in a particular case, I do not propose to do more than state my own views briefly. As stated in Somasundaram Chettiar v. Alamelu Achi (37) 1937 M.W.N. 480 the interpretation of similar orders in execution proceedings must depend upon the surrounding circumstances, even though the order may be actually worded as one of dismissal. In the present instance, I find it difficult to believe that the Collector intended the order of rejection passed on 14th August 1929 to operate as a final order of dismissal which would bar any further petition for summary g redemption under the Act. Not only is the order worded as one of rejection and not one of dismissal, which might in itself be merely a careless interchange of terms, but it seems to me that the order as a whole is so worded as to show that it was intended to be tantamount to a direction that the application should be brought up again at the proper time. 36. Although th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when jurisdiction had been clearly exceeded, this Court might interfere on general principles of law. But when, as here, the question is merely one of the interpretation of an order passed by a revenue officer, and this order has been interpreted in a particular sense by a subsequent revenue officer, presumably with reference to the somewhat obscure procedure in force in proceedings of this kind, I do not think that this can be classed as a clear excess of jurisdiction. It seems to me to be merely a necessary exercise of jurisdiction on a very doubtful point. For these reasons, my answer to the first question would be to say that the answer is in the affirmative, but that this is not of importance in a suit of this kind, when the real question is whether the order of the Collector amounts to an order of dismissal under Section 13 of the Act; and this is a question of interpreting the order passed by the Collector in the light of its contents and the surrounding circumstances. For these reasons, though on somewhat different grounds, I agree in the final order proposed by my learned brother Tek Chand J.; and I fully endorse the recommendation made by my learned brother Din Mohammad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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