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Rajasthan High Court · body

1958 DIGILAW 50 (RAJ)

Panchu v. Balu

1958-02-19

J.N.KUNZRU, SHYAMLAL

body1958
This is a revision against an appellate order of the Additional Commissioner, Jaipur, dated 10.8.1955 in a case relating to redemption of a mortgage over agricultural land which was originally heard and decided by the Board on 30.4.1956 whereby the decision of the lower appellate court was set aside and the case was remanded to the court of the first instance with the direction that the application be decided on merits in accordance with law. A review application was filed against this decision which was allowed on 1.8.1957 and the revision was accordingly restored and fixed for a fresh hearing. 2. We have again heard the learned counsel for the parties to-day. The appeal has been decided by the lower appellate court on the basis of limitation as the application for redemption was held by it to be barred by limitation. The mortgage which forms the subject matter of this dispute was admittedly created on Baisakh Shutting, Svt. 1973 (11th May, 1916 AD.) in lieu of Rs. 110/- with the stipulation that the mortgage money will be repaid on Baisakh Sudi Punam Svt. 1974, failing which the mortgagees would be handed over possession of the mortgaged property Redemption of this mortgage was applied for on 2.12.1952. Both the lower courts held that at the time of the creation of the mortgage the period of limitation for applications of redemption was only 30 years and hence the application was treated by them as being barred by limitation. 3. The first Limitation Act in the former covenanting State of Jaipur was enforced with effect from 1.1.1891 A.D. Art. 31 of the Schedule appended to the Act provided a limitation of 30 years for suits for redemption of mortgages over immovable property commencing from the date of the mortgage. The second Limitation Act was introduced in 1925 and Art. 124 of the Schedule of this Act also provided a 30 years limitation for such suits. The third Limitation Act was introduced in 1943. Art.148 of the First Schedule of this Act provides a 30 years limitation against a mortgagee for redemption and for recovery of possession of immovable property mortgaged commencing from the time when the right to redeem or to recover possession accrued. The third Limitation Act was introduced in 1943. Art.148 of the First Schedule of this Act provides a 30 years limitation against a mortgagee for redemption and for recovery of possession of immovable property mortgaged commencing from the time when the right to redeem or to recover possession accrued. Thus the position that emerges out of these provisions is that the limitation for the present application was available till 1947 i.e. 30 years commencing from Baisakh Sudi Poonam Svt. 1974. But before this date the Jaipur Tenancy Act had been enforced on 1.2.1946. We have to determine the question of limitation with reference to the provisions of this Act. 4. Sec. 108 of the Jaipur Tenancy Act provided that the suits and other proceedings specified in second schedule of the Act shall be instituted within the time prescribed in that schedule for them respectively. Items 2 and 5 relate to applications by mortgagor for delivery of possession and redemption of land and no period of limitation is prescribed in the former item whereas for the latter it has been laid down that the application can be brought at any time during the pendency of mortgage. These provisions, however, cannot govern the present case for the obvious reason that in column two of the second schedule reference is made to the relevant sections of the Act, and in both these items secs. 11 and 12 of the Act are referred. Both these sections relate to transfers made by tenants after the enforcement of the Act and hence cannot govern the present case. This case will, therefore, be governed by secs. 14 and 15 of the Act. Sec. 14 (2) runs as below: — "(2) If the date when this Act comes into force any tenant has made a temporary alienation of his holding in which there is a condition, express or implied, that in default of the payment of any sum of money or interest thereon or both at a certain time or by a certain date or within the statutory period of limitation, the alienor shall be precluded from regaining possession of his holding, the nazim shall have authority to put the alienee to his election as to which of the forms of alienation mentioned in clause (b) of sub-clause (2) of sec. 11 he will accept and such alienation shall be made for such period not exceeding the period permitted by the said section and for such sum of money as the nazim considers equitable." The above provision would apply to a temporary alienation of a holding in which there is a condition express or implied that in default of the payment of any sum of money or interest thereof or within the statutory period of limitation the alienor shall be debarred from regaining possession of his holding. By implication this condition would be found applicable to the mortgage under dispute as it has been contended that after the expiry of the period within which the mortgagor could have exercised his right of redemption the mortgage should be deemed to be fore closed and the mortgagor cannot be allowed to regain possession. Thus we have no doubts in our mind that sec. 14(2) would be applicable to the present case. In the case of such a mortgage the Nazim was given the authority to put the transferee to his election as to which of the forms mentioned in clause (b) of sub-sec. (2) of sec. 11 of the Act he would accept and such alienation was to be made for such period not exceeding the period permitted by the said section. It has been argued in this connection by the learned counsel for the opposite-party that the mortgagor having failed to apply for election against the mortgagee under sec. 14(2) of the Act this section cannot be held applicable to the present mortgage. This argument is evidently based on a falacious reasoning. There is absolutely nothing in this sub-section to suggest that the transferer should apply for exercise of this right. It simply lays down that in the case of such alienation the Nazim shall have the authority to put the transferee to the election mentioned in it. The test of applicability of this section, therefore, is as to whether the Nazim has or has not the authority referred to above. If such authority is available to him the transfer would be governed by this sub-section irrespective of the fact as to whether the mortgagor had ever applied for such election or not. After having disposed of this objection we would now deal with sec. If such authority is available to him the transfer would be governed by this sub-section irrespective of the fact as to whether the mortgagor had ever applied for such election or not. After having disposed of this objection we would now deal with sec. 15 of the Act which runs as follows:— "If an alienee holding possession under a mortgage under sub-clause (ii) of clause (b) of the proviso to sub-sec. (2) of sec. 11 or sec. 14 remains is possession after the expiry of the term for which he was entitled to hold under the mortgage, the Nazim may on his own motion or on the application of the person entitled to possession eject such person and place the person entitled in possession." 5. This section clearly lays down that if a mortgagee remains in possession under a mortgage to which sec. 14 applies the Nazim may on his own motion or on the application of the person entitled to possessions eject such person and place the person entitled in possession. This provision is referred to in item No. 7 of the second schedule of the Act. No. limitation is prescribed under this item and hence after the passing of the Act if the mortgage was liable to be redeemed it was open to the mortgagor to apply for possession under sec. 15 of the Act, if by virtue of sec. 14(2) he had become entitled to recover possession The present application is in substance an application within the aforesaid item An argument was also addressed to us as regards the repeal of this provision by sec. 43 of the Rajasthan Tenancy Act, but the insertion of a new sec. 43 (a) in the Act has rendered that argument untenable and hence nothing need be said about it in this judgment. For these reasons we, therefore, hold that the lower courts were not justified in dismissing the application on the ground of limitation. We therefore, allow this revision, set aside the orders of the lower courts and remand the case to the court of the first instance with the direction that the application be now decided on merits in accordance with law.