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Rajasthan High Court · body

2012 DIGILAW 1072 (RAJ)

Ram Gopal v. Budhiprakash

2012-04-26

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The defendant-petitioners have preferred this civil revision petition under Section 115 of the Code of Civil Procedure against the impugned order dated 17.8.2011 passed by Civil Judge (Junior Division) Bonli (District Sawaimadhopur) in Civil Suit No. 3/2011 whereby the learned trial Court while deciding issue No. 6 has held that the suit filed by plaintiff-non-petitioner for redemption of mortgage is within limitation. 3. Brief relevant facts for the disposal of this revision petition are that the non-petitioner filed a suit for redemption of usufructuary mortgage against the petitioners with the averment that the suit property was mortgaged by Shri Rameshwar Prasad on 18.7.1980 to the petitioners in lieu of security amount of Rs. 7301/- and possession was also delivered to them and subsequently on 28.1.1983, the suit property was sold by mortgagor-Shri Rameshwar Prasad to one Shri Bhag Chand and Shri Bhag Chand sold the same to the plaintiff-non-petitioner and, therefore, he has a right to redeem the suit property. It was prayed by the non-petitioner that the suit property may be ordered to be redeemed and possession of the same may be handed over to him. The petitioners by filing the written statement resisted the suit filed by the non-petitioner on various grounds including the ground that the same is time barred as it has been filed after the expiry of period of limitation of 30 years prescribed for such a suit and the period of limitation commenced from the date of execution of the mortgage-deed dated 18.7.1980. On the basis of pleadings of the parties, necessary issues were framed by the Court below including Issue No. 6 to the effect that whether the suit being barred by time is liable to be dismissed. On the basis of pleadings of the parties, necessary issues were framed by the Court below including Issue No. 6 to the effect that whether the suit being barred by time is liable to be dismissed. The learned Court below after hearing both the parties decided Issue No. 6 as a preliminary issue and held that the prescribed period of limitation of 30 years for filing the present suit commenced from the date of transaction of mortgage i.e. 18.7.1980 and, therefore, the suit could have been filed till 18.7.2010 but relying upon the provisions of Section 14 of the Limitation Act (hereinafter to be referred as "the Act"), the Court below held that the period spent in pursing another suit for redemption of mortgage till the date of dismissal of the appeal arising out of that suit i.e. 6.8.2010 is liable to be set-off from the period of limitation prescribed and if calculated on that basis, the present suit is within limitation. Consequently, issue No. 6 regarding limitation was decided against the defendant-petitioners. Being dissatisfied, the petitioners are before this Court by way of this revision petition. 4. Assailing the impugned order, learned counsel for the petitioners has raised the following grounds:- (i) In the present case, Section 14 of the Act does not apply but the learned Court below without considering the relevant provision in a right perspective has wrongly set-off the period spent in pursuing the previous suit for the same relief to hold that the present suit is within limitation. According to learned counsel, for the applicability of Section 14 of the Act, apart from other conditions, it is essential that some proceedings bonafidely have been prosecuted with due diligence in a wrong Court but in the present case it is nobody's case that the previous suit for redemption of mortgage was prosecuted in a wrong Court bonafidely and, therefore, the impugned order is liable to be set aside. (ii) According to Article 61(a) of the Act period of 30 years is prescribed for a suit to redeem or recover possession of immovable property mortgaged and such period commences from the date when the right to redeem or to recover possession accrues to the mortgagor. (ii) According to Article 61(a) of the Act period of 30 years is prescribed for a suit to redeem or recover possession of immovable property mortgaged and such period commences from the date when the right to redeem or to recover possession accrues to the mortgagor. It was submitted that it is well settled that if in the mortgage deed no period is fixed before which the mortgagor cannot redeem the mortgage, the period of 30 years to redeem the mortgage or to recover the possession of the mortgaged property commences as soon as the transaction is effected or mortgage deed is executed. According to learned counsel for the petitioners in the present case no date was fixed in the mortgage deed before which the plaintiff-mortgagor was not entitled to redeem the mortgage and, therefore, the period of 30 years commenced from the date of mortgage i.e. 18.7.1980 and the suit was required to be filed on 18.7.2010 or before it and as the same was filed on 9.12.2010, it is hopelessly time barred. In support of his submissions, learned counsel for the petitioners relied upon the cases of Ramasubramania Mudaliar and others vs. Soorianarayana Iyer and others reported in AIR 1977 (Madras) 297 and Hari Singh Kaka Singh vs. Harijan Co-operative Society of Chupki, Sub Tehsil Samana, District Patiala reported in AIR 1971 (Punjab & Haryana) 422. 5. On the other hand, learned counsel for the non-petitioner supporting the impugned order, submitted that if a period is provided in the mortgage deed to the effect that the right to redeem the mortgaged property cannot be exercised before the expiry of period so fixed, the right to redeem accrues only on the expiry of such period. It was also submitted that in the present case in the mortgage deed executed between the parties a clear condition was provided that the mortgagor will be entitled to re-pay the secured amount any time within three years and claim redemption of the suit property and, therefore, prescribed period of limitation shall commence only on the expiry of the period of three years so provided in the mortgage deed and if calculated on that basis, the present suit is within limitation. Relying upon the case of Shambhu Dayal vs. Smt. Tarawanti and others reported in AIR 1985 (Punjab & Haryana) 21 learned counsel for the non-petitioner contended that in a similar circumstance, it was held by Hon'ble Punjab & Haryana High Court that the period of limitation will commence on the expiry of the period so prescribed in the mortgage deed. 6. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties. 7. So far as the applicability of Section 14 of the Act is concerned, I am of the considered view that the learned Court below has wrongly applied the same to the facts of this case and even learned counsel for the non-petitioner could not dispute the same. Section 14(1) provides that "In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." Thus, it is clear that for the applicability of this provision apart from fulfillment of other conditions, it is also necessary to show that the previous suit was prosecuted in such a Court which, from defect of jurisdiction or other cause of a like nature was unable to entertain the same. In the present case, it is nobody's case that the previous suit was filed in a Court which, from defect of jurisdiction or from any other reason was not entitled to entertain the same. The learned Court below without considering this aspect of the matter in a right perspective has wrongly held that the time spent in prosecuting the previous suit and the appeal arising therefrom is liable to be set-off for calculating the period of limitation for filing the present suit. Therefore, it is concluded that the present suit cannot be held to be within limitation only on the basis of Section 14 of the Act. 8. Therefore, it is concluded that the present suit cannot be held to be within limitation only on the basis of Section 14 of the Act. 8. Now, the question which remains to be considered and decided is that from what date the prescribed period of 30 years can be held to be commenced. 9. Article 61(a) of the Act provides the period of limitation for a suit for redemption of mortgage filed by a mortgagor and according to it the period is 30 years and the same will commence from the date when the right to redeem or to recover possession has accrued. Therefore, the important question to be decided is that when the right to redeem or to recover possession actually accrued. In this regard the well settled legal position appears to be that ordinarily the right to redeem or recover possession accrues when the principal money due under the mortgage deed become due. If the deed had not fixed any period for payment, the mortgage money becomes due from the date of the mortgage itself and in cases where a date has been fixed under the document for payment, it becomes due on the expiry of the specified period unless that term is held to be invalid as a clog on redemption. Under Section 60 of the Transfer of Property Act, any time after the principal money has become due the mortgagor has a right on payment or tender to require the mortgagee to deliver possession. This right of redemption on payment of money is a statutory right which cannot be fettered by any condition which impedes or prevents redemption. Any such condition is void as a clog on redemption. 10. In the present case, a close perusal of mortgage deed as executed on 18.7.1980 does not reveal that any period was prescribed or any date was fixed before which the mortgagor was not entitled to seek redemption of the mortgage and, therefore, in my considered view in the light of the well settled legal position the right to redeem the mortgage accrued to the mortgagor as soon as the transaction was effected and the mortgage deed was executed. As the transaction of mortgage was effected on 18.7.1980 and the mortgage deed was also executed on the same date, the prescribed period of 30 years commenced from the same date and, therefore, the suit could have been filed on 18.7.2010 or before it. I do not agree with the contention made on behalf of the non-petitioner that as an option was given to the mortgagor to re-pay the amount secured any time within three years of the execution of the mortgage deed, the period of limitation will commence not from the date of transaction but only on the expiration of three years as provided in the mortgage deed itself. I am of the considered view that only by the reason that an option was given to the mortgagor to re-pay the mortgage amount any time within three years from the date of mortgage, it cannot be said that the time to redeem the mortgage was postponed for three years and the mortgagor was not entitled to redeem the mortgage before expiry of that period. At the most it can be said that condition of re-paying the mortgage amount any time within the period of three years was an enabling one meant for the benefit of mortgagor and it was open to him to redeem the property within a period of three years if he had so desired on payment of the mortgage amount. The condition so provided in the mortgage deed cannot be interpreted in the manner as desired by learned counsel for the non-petitioner. So far as the case of Shambhu Dayal vs. Smt. Tarawanti and others (supra) relied upon by learned counsel for the non petitioner is concerned, being based on entirely different fact situation, it is of no help to the non-petitioner. The facts of the case indicate that a period of 10 years was specifically provided in the mortgage deed before which the mortgagor was not entitled to seek redemption but an option was given to him that by making payment of additional amount of Rs. 90/- he can redeem the property even before expiry of ten years. The facts of the case indicate that a period of 10 years was specifically provided in the mortgage deed before which the mortgagor was not entitled to seek redemption but an option was given to him that by making payment of additional amount of Rs. 90/- he can redeem the property even before expiry of ten years. In that fact situation, it was contended that the period of limitation commenced from the date on which the mortgage deed was executed but it was held that merely because an option was given to the mortgagor to redeem the property even before expiry of ten years by making payment of additional amount of Rs. 90/- it cannot be said that the period of limitation commenced from the date of execution and not from the expiry of period of ten years. In the present case the facts are not like this. No period or date has been fixed in the mortgage deed before which the mortgagor was not entitled to seek redemption. An unnecessary condition was provided giving an option to the mortgagor to re-pay the mortgaged amount any time within a period of three years. In my opinion even if such option would not have given to the mortgagor to repay the mortgaged amount, he was entitled to seek redemption even on the date on which the transaction was effected and the mortgage deed was executed. As the present suit has been filed after the expiry of prescribed period of 30 years, the suit was hopelessly time barred. The learned Court below has wrongly held that the suit is within limitation and, therefore, the finding given under Issue No. 6 is liable to be set aside and as a consequence of that the suit is liable to be dismissed as time barred. Consequently, this civil revision petition filed by the defendant-petitioners is allowed and by setting aside the finding given by the court below under Issue No. 6, the suit is liable to be dismissed as time barred. Stay application also stands dismissed.