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2007 DIGILAW 1261 (PNJ)

Bharat Bhushan v. Ram Lal

2007-07-03

SATISH KUMAR MITTAL

body2007
Judgment 1. The mortgagor has filed this revision petition against the order dated 26-8-1991 passed by the Sub-Judge, Ist Class, Palwal, dismissing his application dated 28-8-1989 for extension of time to deposit the redemption money in terms of the decree dated 29-10-1981. 2. In this case, the mortgaged property is a shop. The mortgagee (respondent herein) was in possession of the shop as a tenant @ Rs. 25/- per month prior to the creation of the mortgage in question in the year 1972 by Khiloni Ram, the predecessor of the petitioner, for an amount of Rs. 5,000/-. There was a specific condition in the registered mortgage deed that in case of redemption of the mortgage, the original position will revive and the mortgagee will remain in possession of the shop as a tenant. 3. After the death of Khiloni Ram, the petitioner filed a suit for possession by way of redemption on 27-11-1980. The petitioner filed the said suit as minor through his guardian. The said suit was partly decreed on 29-10-1981 by holding that the petitioner is entitled to redeem the mortgage on payment of the mortgaged amount of Rs. 5,000/- to the mortgagee till 1-12-1981. However, it was made clear that the mortgagor was not entitled to the actual physical possession of the shop in question and on redemption of the mortgage, he was to get only the symbolic possession and the mortgagee will continue in possession of the shop as a tenant under the mortgagor on the terms of the tenancy agreed between them originally. 4. Against the above-said judgment and decree, the petitioner filed an appeal through his natural guardian, which was dismissed on 20-5-1982. Before the Appellate Court, a prayer was made by the petitioner for extension of time to deposit the mortgaged amount. The said request was rejected by the Appellate Court on the ground that under O. 34, R. 7, C. P. C., the trial Court can extend the time and a liberty was granted to the petitioner to apply for extension of time before the trial Court. 5. The guardian of the petitioner, who was conducting the proceedings on behalf of the minor and pursuing the claim of the petitioner, did not apply for extension of time before the trial Court for depositing the mortgaged amount. In the meanwhile, the petitioner attained majority on 15-8-1987 as his date of birth was 16-8-1969. 5. The guardian of the petitioner, who was conducting the proceedings on behalf of the minor and pursuing the claim of the petitioner, did not apply for extension of time before the trial Court for depositing the mortgaged amount. In the meanwhile, the petitioner attained majority on 15-8-1987 as his date of birth was 16-8-1969. After attaining majority, the petitioner filed an application for extension of time on 28-8-1989 alleging therein that his natural guardian, who was prosecuting the aforesaid proceedings, did not take care of the interest of the minor after decision of the appeal by not applying for extension of time from the trial Court for depositing the mortgaged amount as per the liberty granted by the Appellate Court. He further prayed that the limitation for redemption of the mortgage in question was 30 years and the same did not expire, therefore, the time could be extended. He also contended that the mortgagee will not suffer because even after redemption of the mortgage, he will remain in actual possession of the shop in question as a tenant. 6. The trial Court dismissed the aforesaid application on the ground that the petitioner could not show sufficient reasons for extension of time for making application after seven years of the dismissal of the appeal. The only ground on which the extension of time was sought that the petitioner filed the application after attaining majority, was not accepted for the reason that the petitioner filed the suit as well as the appeal being minor, therefore, his guardian could have also filed the application for extension of time and could have deposited the mortgaged amount. Against the said order, the instant revision petition has been filed. 7. Counsel for the petitioner made three-fold submission. Firstly that under Rule 7(1)(c)(ii) of Order 34, C. P. C., the trial Court is competent to extend the time for depositing the mortgaged amount in terms of the preliminary decree on showing good cause. Such time can be extended by the trial Court from time to time till the passing of a final decree for foreclosure or sale, as the case may be. He submitted that for extending the time for depositing the mortgaged amount, there is no question of any period of limitation till the final decree is passed. However, the application for passing the final decree is governed by Art. 137 of the Limitation Act. He submitted that for extending the time for depositing the mortgaged amount, there is no question of any period of limitation till the final decree is passed. However, the application for passing the final decree is governed by Art. 137 of the Limitation Act. In support of his contention, learned counsel for the petitioner relied upon a Division Bench decision of this Court in Baldev Singh v. Kishan Singh Rep. by L. Rs., 1991 PLJ 692. Secondly, learned counsel submitted that the mortgage in question is a usufructuary mortgage, therefore, in case of such mortgage even after the period for payment of the amount declared due fixed in the preliminary decree has expired, the plaintiff-mortgagor can apply for a final decree at any time before the right to redeem becomes barred. He submitted that in such cases the question of limitation does not arise as the plaintiff-mortgagor has a right to apply for the final decree until his right to redeem the mortgaged property is barred. He further submitted that in this case when the application for extension of time was filed, the right of the petitioner to redeem the mortgaged property was not barred. He also submitted that Rule 7(1)(c)(ii) of Order 34, C.P.C. does not apply to a usufructuary mortgage, therefore, on default of payment by the plaintiff-mortgagor to pay the mortgaged amount under the decree, the usufructuary mortgagee cannot apply for a final decree. In case of a usufructuary mortgage, it is only the plaintiff-mortgagor who can apply to the Court to pass a final decree, and on payment of the amount declared due under the preliminary decree to order the mortgagee to put him in possession of the mortgaged properties. Therefore, he submitted that in case of usufructuary mortgage, Rule 7 of Order 34, C. P. C. does not apply and hence it is not necessary for the mortgagor to apply for extension of time fixed in the preliminary decree. At any time before his right to redeem extinguished, he can apply for final decree after depositing the mortgaged amount. In support of his contention, learned counsel for the petitioner relied upon a Division Bench decision of the Patna High Court in Md. Azim and others v. Md. Sultan and others, AIR 1946 Pat 99. 8. At any time before his right to redeem extinguished, he can apply for final decree after depositing the mortgaged amount. In support of his contention, learned counsel for the petitioner relied upon a Division Bench decision of the Patna High Court in Md. Azim and others v. Md. Sultan and others, AIR 1946 Pat 99. 8. Thirdly, learned counsel for the petitioner submitted that even in case it is held that Rule 7(1)(c)(ii) of Order 34, C. P. C. is applicable and there is a limitation of three years under Art. 137 of the Limitation Act for applying for a final decree, the petitioner has shown sufficient cause for extension of time as he was a minor at the relevant time and his guardian could not protect his interest and moved the application for extension of time for depositing the mortgaged amount immediately after the decision of the appeal. He submitted that after attaining majority on 15-8-1987, the petitioner filed the instant application for extension of time for depositing the mortgaged amount. By that time, even the limitation for applying for a final decree had not expired. He further submitted that a person under disability is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Sections 6 and 7 of the Limitation Act shall exceed three years from the cessation of the disability. He submitted that even if the period of limitation for applying for a final decree is three years under Article 137 of the Limitation Act, the petitioner had filed the application for extension of time within the period of limitation, therefore, the trial Court should have extended the time for depositing the mortgaged amount keeping in view the fact that the petitioner was minor and he attained the majority only on 15-8-1987. 9. On the other hand, counsel for the respondent opposed the prayer made by the petitioner and submitted that the trial Court has rightly not extended the time for depositing the mortgaged amount after the expiry of the period of seven years. While adopting the reasoning given by the trial Court, learned counsel submitted that the factum of minority of the petitioner during the period of seven years was no ground for extension of time. While adopting the reasoning given by the trial Court, learned counsel submitted that the factum of minority of the petitioner during the period of seven years was no ground for extension of time. He further submitted that the mortgage in question is not a usufructuary mortgage as in this case when the mortgage was created, the respondent was already in possession of the shop as a tenant and there was a condition in the mortgage deed that even after redemption, the mortgagee will remain in possession as a tenant on the same terms and conditions. He submitted that the instant mortgage is an anomalous mortgage and in such mortgage, the mortgagee can pray for passing of a final decree debarring the mortgagor from claiming his right to claim the property. However, in case of usufructuary mortgage, the mortgagee is not entitled to apply for a final decree. 10. The legal position in case of a mortgage by conditional sale or anomalous mortgage and a usufructuary mortgage, is different. In case of usufructuary mortgage, Order 34, Rules 7 and 8, C. P. C. do not confer any right upon the usufructuary mortgage to apply for a final decree which is conferred on a mortgagee of other types of mortgages. By reason of sub-rule (1) of Rule 8 of Order 34, C. P. C., the mortgagor is entitled to make an application for final decree at any time before a final decree debarring the plaintiff from all rights to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of that Rule. No such application is again contemplated at the instance of the usufructuary mortgagee. Further, a bare perusal of the provisions of O. 34, Rr. 7 and 8, C. P. C. would show that despite failure to pay the amount declared due by the preliminary decree on or before the date fixed by the Court, the defendant-mortgagee shall be entitled to apply for a final decree under sub-clause (c)(ii) of Rule 7 of O. 34, C. P. C. In a case of mortgage by conditional sale or anomalous mortgage, the mortgagee can pray for passing of a final decree debarring the mortgagor from claiming his right to redeem the property. However, in case of a usufructuary mortgage, the mortgagee is not entitled to apply for a final decree. Sub-rule (1) of Rule 8 of Order 34, C. P. C. shows that only a mortgagor can apply to the Court to pass a final decree on payment of the amount found or declared due under the preliminary decree on making this deposit and upon filing the application as provided for in sub-rule (1) of Rule 8 the mortgagor can request the Court to order the mortgagee to put him in possession of the properties which were the subject-matter of the mortgage. The amount determined by the Court which the mortgagor is liable to pay to the mortgagee can be deposited before the right of redemption is lost. In case of usufructuary mortgage, the right of redemption is not closed. It is also clear that sub-rule (2) of Rule 7 of Order 34, C. P. C. does not apply to the usufructuary mortgage. The said rule is applicable only in case of mortgages other than usufructuary mortgages. The usufructuary mortgagor is not required to seek extension of time. He can seek passing of the final decree after depositing the amount found or declared due by the preliminary decree till his right to redeem extinguished. Thus, a default in depositing the mortgaged amount in terms of the preliminary decree would not debar the mortgagor in usufructuary mortgages from a right to redeem the mortgaged property. 11. In my opinion, the instant case is not usufructuary mortgage. The mortgage in question is an anomalous mortgage as prior to creating the mortgage by the registered mortgage deed, the respondent-mortgagee was a tenant in the shop in question and as per the terms of the mortgage deed even after redemption of the mortgage, he was to remain in possession as a tenant on the same terms and conditions. Therefore, the aforesaid legal position, which is applicable to the usufructuary mortgages, will not apply in the instant case and the petitioner cannot be given benefit of the said legal position. 12. It is well settled that in case of usufructuary mortgage, the mortgagee has no right to apply for foreclosure or sale or redemption. In case of other mortgage, the mortgagee has a right to apply for final decree from debarring the mortgagor to redeem the mortgaged property. 12. It is well settled that in case of usufructuary mortgage, the mortgagee has no right to apply for foreclosure or sale or redemption. In case of other mortgage, the mortgagee has a right to apply for final decree from debarring the mortgagor to redeem the mortgaged property. Therefore, the limitation to file an application under O. 34, R. 8(1), C. P. C. to pass a final decree for redemption, starts running and continues to run its course from the date of expiry of the period fixed in the preliminary decree unless it is stayed or suspended or the time prescribed in the preliminary decree is extended by an order of the Court. In its absence on expiry of the limitation of three years from the date fixed in the preliminary decree expired under Art. 137 of the Schedule to Limitation Act, the plaintiff is debarred to enforce the right to pass the final decree. Therefore, in case of other mortgages than usufructuary mortgage, there is a limitation of three years in getting the final decree passed. 13. In the instant case, the mortgagor could have applied for passing of the final decree within a period of three years and he could have also filed an application for extension of time for depositing the mortgaged amount in terms of the preliminary decree with a prayer for passing of the final decree within a period of three years. But, in the instant case, when the preliminary decree was passed with the condition to deposit the mortgaged amount within the stipulated period and when the appeal of the petitioner was dismissed with liberty to apply for extension of time before the trial Court, the petitioner was minor. Admittedly, he attained majority on 15-8-1987. Sections 6, 7 and 8 of the Limitation Act provide that a person under disability is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Section 6 or Section 7 shall exceed three years from the date of cessation of the disability. In Darshan Singh and others v. Gurdev Singh, AIR 1995 SC 75, it has been held as under (Para 3) :- "Section 3 of the Act posits that the period of limitation applicable to a suit or other proceedings, if the period prescribed in the Schedule gets expired, the suit or application becomes barred by limitation though the right may subsist. However, S. 3 says that in particular circumstances, the limitation gets modified by the provisions of Ss. 4 to 24 of the Act. Article 65 in Part V of the Schedule regulates limitation of the suits relating to immovable property. For possession of immovable property or any interest therein based on title, the period of limitation prescribed is 12 years which begins to run when the possession of the defendant becomes adverse to the plaintiff. Section 6 deals with legal disability under sub-section (1) thereof where a person entitled to institute a suit or at the time from which the prescribed period is to be reckoned. A minor or insane or an idiot, may institute the suit or make an application within the same period, after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third Column of the Schedule. In other words, though in a given case, the defendant may have perfected title by adverse possession during minority of the plaintiff by remaining in continuous and uniterrupted possession and enjoyment of the immovable property ascertaining his own exclusive right, title or interest in immovable property to the knowledge of the plaintiff, on cessation of the disability, even though the period of limitation prescribed in third column of the Schedule might have expired by efflux of time. Section 6 elongates the right and enlarges the limitation and entitled the minor, insane or idiot to institute the suit or make the application within the same period prescribed in the Third Column of the Schedule to the Act, after the disability to which the minor, the insane or the idiot has been subjected to, ceased. Section 8 makes special exception to S. 6. In other words, notwithstanding the availability of limitation in the Third Column of the Schedule prescribed under the relevant Article, the suit or application shall be filed within three years from the cessation of the disability or the death of a person affected thereby engrafting the language thus :- "8. Section 8 makes special exception to S. 6. In other words, notwithstanding the availability of limitation in the Third Column of the Schedule prescribed under the relevant Article, the suit or application shall be filed within three years from the cessation of the disability or the death of a person affected thereby engrafting the language thus :- "8. Special exceptions :- Nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-emptions, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application." 14 It has been held that on his attaining majority, a minor gets three years period to file a suit within the limitation prescribed. Even if the period of limitation expires by efflux of time till he attains majority, he gets a further period of three years from the date of cessation of disability to file such suit. It has been further held that Section 8 is a special exception to Section 6 or Section 7 and the period of limitation though barred under Section 3, remained available to persons under disability specified in Section 6 or Section 7 and the right to lay the suit or application after disability ceased under Section 6 or Section 7 is regulated by the limitation prescribed by Section 8. In other words, the litigant is entitled to a fresh starting period of limitation from the date of cessation of disability subject to the condition that in no case the period extended by this process under Section 6 or Section 7 shall exceed three years from the date of cessation of the disability. Keeping in view the said principle, the limitation was available with the petitioner to apply for final decree. Till the right of the petitioner to apply for final decree was not extinguished, he was having a right to apply for extension of time. The trial Court under sub-rule (2) of Rule 7 of Order 34, C. P. C. is empowered to extend the time from time to time at any time before passing the final decree after foreclosure or sale, as the case may be. 15. In this case, the minority of the petitioner was sufficient cause which the Court should have taken into consideration. 15. In this case, the minority of the petitioner was sufficient cause which the Court should have taken into consideration. After attaining majority, he filed the instant application for extension of time. Neither his right to redeem the property nor his right to apply for final decree was extinguished at that time. It has been further held by a Division Bench of this Court in Baldev Singhs case (supra) that so far as the application for extension of time is concerned, the same can be filed in terms of sub-rule (2) of Rule 7 of O. 34, C. P. C. and the Court is competent to grant extension of time from time to time at any time before passing the final decree for foreclosure or sale. Therefore, in my opinion, the trial Court has not properly taken into consideration the legal position with regard the minority of the petitioner. On his attaining majority, a fresh period of limitation has been conferred on him by statute. Keeping in view the said legal position and the fact that neither any final decree was passed nor the period of limitation for applying for final decree was expired, the trial Court should have extended the time for depositing the mortgaged amount. Therefore, by not extending the time; a grave illegality has been committed which has caused great prejudice and injustice to the petitioner. In view of the above, this revision petition is allowed and the impugned order dated 26-8-1991 passed by the Sub-Judge, Ist Class, Palwal is set aside, and the petitioner is permitted to deposit the mortgaged amount within a period of two months from the date of passing of the order with no order as to costs.