Nand Lal Thakur v. State of Bihar — 1980 DIGILAW 144 (PAT)

JUDGMENT This is an application under Articles 226 and 227 of the Constitution of India for issuance of an appropriate writ quashing Annexure 2 of this application. 2. The short facts are these : On 7th July 1943, the petitioner's father, Bulaki Hazam. executed registered Rehan deed in favour of the father of respondent nos. 5 to 7. late Munshi Jagdayal Lal. This Rehan deed was in respect of 1.75 acres of land of Khata No. 15 &105 of village Jamuhara and Jaynagra respectively. After coming into force of the Bihar Money Lenders Act, 1974, the petitioner filed an application before the Collector of Sasaram for rejecting the mortgagee respondent nos. 5 to 7. By his order dated 2.2.1977 in case No. 392 of 1976, the Collector directed the District Nazir to deliver the possession of the land in question to the petitioner. The respondent nos. 5 to 7 preferred a revision under section 46 or the Act, before the Commissioner and, by his order dated 2nd of August, 1977 the Commissioner allowed the revision application and set aside the order passed by the Collector. The Commissioner’s order is contained in Annexure 2 to this application. This order is under challenge in this writ application. 3. Mr. Chandra Shekhar, learned counsel appearing on behalf of the petitioner, has submitted that the law of limitation does not apply so far as section 12 of the Act, is concerned. His further submission is that mortgage, after the present Act, came into force, shall be deemed to have been redeemed retrospectively. For this be placed reliance on a decision of this Court in Md. Yunus and ors. Vs The State of Bihar and others learned counsel referred to paragraph 11 of the said judgment in which B. P. Jha, J. observed that so far as the question of application of Limitation Act, was concerned, it applied by virtue of its Section 3 to suits instituted, appeals preferred or application arising out of a suit. The learned Judge further observed as follows :- “I am of the opinion the whether the decree has been executed or has not been executed section 12 of the Act, applies to the case of the mortgagors. I am further of the opinion that no suit for redemption is necessary to be filed. The learned Judge further observed as follows :- “I am of the opinion the whether the decree has been executed or has not been executed section 12 of the Act, applies to the case of the mortgagors. I am further of the opinion that no suit for redemption is necessary to be filed. I am thus of the opinion that the provisions of the Limitation Act, do not apply so far as section 12 of the Act, is concerned”. One of us (M. P. Varma J.) delivering a separate judgment referred to an earlier Bench decision of this Court in Ram Rup Kuer and others Vs. The State of Bihar and others. In the case of Ram Rup Kuer and ors. (supra) it was held that in order that a mortgagor may recover possession under the section and the rules the mortgage must be subsisting. In that case due to lapse of time or conduct of parties the right, title and interest of the mortgagor in the property had been extinguished prior to coming into force of the provisions of the Act. It was held that the question of redemption and recovery of possession did not arise. In these circumstances the right, title and interest in the property itself having been extinguished the question of revival of the extinguished right did not arise. Referring to this decision and agreeing with the principles laid down therein, M. P. Varma, J. stated that the mortgagor cannot take shelter under the cover of section 12 of this special enactment of the Bihar Money benders Act, when the right, title and interest are extinguished. He further observed that in the case of Md. Yunus and others (supra) the mortgage subsisted and the mortgagors were within their rights to resort to the provisions of this special enactment. The facts of the case of Md. Yunus therefore different from the facts of the present case. 4. Observations made in paragraph 11 by B.P. Jha, J. were in fact not relevant for deciding that case. The case of Md. Yunus (supra) was decided on 24.1.1980. Prior to that a Full Bench of this Court had the occasion to consider the scope of section 12 of Act, in the case of Dorik Mahto and another Vs. The State of Bihar and others. The case of Md. Yunus (supra) was decided on 24.1.1980. Prior to that a Full Bench of this Court had the occasion to consider the scope of section 12 of Act, in the case of Dorik Mahto and another Vs. The State of Bihar and others. It was held by the Full Bench that in order to apply the mischief of section 12 or the Bihar Money Lenders Act, 1975 to a mortgage, the mortgage in question must be subsisting on the relevant date and its provisions cannot apply to a mortgage which has ceased to exist in the eye of law. This had really settled the point and even though this case was not referred to before the Bench deciding the case of Mr. Yunus (supra), M. P. Varma, J. laid down the same principles as was laid down by the Full Bench. 5. In the present case, Rehan deed had been executed on 7.6.1953. After the lapse of 30 years, as Provided by section 27 of the Limitation Act, read with Articles 61(a) of the schedule, the mortgage stood extinguished on 7.6.1973. The Bihar Money Lenders Act, 1974 came into force with effect from 20th March 1975. In that view of the matter, the mortgage, in the present case, did not exist on the date this Act, came into force. That being the position, section 12 of the Act, cannot apply to such a case. The Commissioner was right in holding that the right and interest of the mortgagor had been extinguished and he cannot claim any relief under section 12 of the Act. 6. The writ application, therefore, must fail and it is accordingly dismissed. Hearing fee Rs. 215/-. Application dismissed.