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2012 DIGILAW 389 (HP)

Krishan Lata v. Vipan Chand

2012-07-16

V.K.AHUJA

body2012
JUDGMENT V.K.Ahuja, J.(oral) This is a regular second appeal filed by the appellant under Section 100 C.P.C against the judgment and decree of the Court of l earned Additional District Judge, Fast Track Court, Kangra at Dharamshala, dated 1.12.2007 vide which he had set-aside the judgment and decree of the Court of learned Sub Judge 1st Class,(II), Dharamshala, District Kangra, H.P. dated 20.3.2003 vide which he had dismissed the suit of the plaintiff for possession. 2. Briefly stated the facts of the case are that the respondent (hereinafter referred to as the plaintiff) filed a suit for possession by way of redemption on payment of mortgage money of Rs. 230/- against the appellant(hereinafter referred to as the defendant). It was alleged by the plaintiff that the suit land was recorded in the ownership of various persons including the plaintiff and in possession of the defendant. The plaintiff alleged that he is owner to the extent of 430/4618 share out of which he is mortgagor to the extent of 385/4618 1 shares and the defendant is mortgagee which works out to about 1/12 share. The mortgage was created by Duni Chand alias Munshi, the previous owner in favour of the defendant for a sum of ‘ 230/- vide the registered mortgage deed dated 3.9.1970. The mutation No. 445 was also sanctioned on 15.10.1973. It was alleged that the plaintiff had purchased the suit land from the previous owner/mortgagor Duni Chand alias Munshi alongwith mortgage rights and he had stepped into the shoes of the mortgagor and is thus entitled to redeem the mortgaged land. The plaintiff asked the defendant to receive the mortgage money and get the mortgage redeemed in favour of the plaintiff but she refused. Hence, the suit filed by the plaintiff for possession by way of redemption. 3.Defendants took up the plea that the sale by original mortgagor in favour of the plaintiff is null and void and the suit is not maintainable. The plaintiff was not admitted to be the owner of the suit land and it was also pleaded that the suit land was sold to the plaintiff behind the back of the defendant and as such the said sale is void and illegal and no valid title has passed to the plaintiff. The plaintiff was not admitted to be the owner of the suit land and it was also pleaded that the suit land was sold to the plaintiff behind the back of the defendant and as such the said sale is void and illegal and no valid title has passed to the plaintiff. It was further pleaded by the defendant that the original mortgagor had earlier filed a redemption application before the Collector, Dharamshala on 21.3.1989 which was dismissed in default and second application for redemption was also dismissed by the Collector on 31.12.1996. Thus, it was pleaded that since two applications were dismissed by the Collector, the suit is not maintainable. 4.On the pleadings of the parties, following issues were settled by the learned trial Court: 1. Whether the plaintiff is entitled for possession of suit land by way of redemption on payment of mortgage money of Rs.230/-,as alleged? OPP 2.Whether the present suit is barred by principle of resjudicata u/s 11 C.P.C.OPD 3. Whether the suit is bad for non-joinder of Duni Chand being necessary party? 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct ?OPD 5. Whether the sale by original mortgager in favour of mortgagor in favour of plaintiff is null and void? OPD 5-A Whether suit of the plaintiff is not maingtainable in the present form? OPD 5-B Whether the defendant has become owner of suit land in view of agreement dt.7.11.91, as alleged? OPD 5-D Whether the suit of plaintiff is within time? OPD 6.Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment and decree dismissed the suit of the plaintiff. 6. On appeal, those findings were set-aside by the learned appellate Court, who allowed the appeal and decreed the suit of the plaintiff for possession. 7. I have heard the learned counsels for both the parties and have gone through the record of the case. 6. On appeal, those findings were set-aside by the learned appellate Court, who allowed the appeal and decreed the suit of the plaintiff for possession. 7. I have heard the learned counsels for both the parties and have gone through the record of the case. 8.The appeal in question was admitted by this Court on the following substantial questions of law:-a)“Whether the suit filed by the plaintiff-respondent is not maintainable being hit by the principal of Resjudicata in that the earlier petitions for redemption with respect to the same mortgage and subject matter were dismissed and the orders attained finality?c)Whether the Lower Appellate Court failed to appreciate the evidence on record and the correct Provisions of Law?” 9.The submissions made by the learned counsel for the appellant were that once the application was dismissed by the Collector for redemption, the subsequent application does not lie and since the subsequent application was also dismissed by the Collector, the suit of the plaintiff for possession by way of redemption was not maintainable. 10. My attention has been drawn to Section 13 of the Redemption of Mortgages (Himachal Pradesh) Act, 1971, which reads as under: 13:No second petition-The dismissal of a petition under this Act shall bar any further petition under this Act by the same petitioner or his representative in respect of the same mortgage. 11. It is, therefore, clear from a perusal of this Section that once the application has been dismissed under the provisions of the Act, no further application lies by the petitioner or his representative in respect of the same mortgage. On the other hand , it is also clear that as per the provisions of the Act, no fresh application could be filed to the Collector for redemption of mortgage . 12. On the other hand the submissions made by the learned counsel for the respondent were that the present suit has been filed under Transfer of Property Act, which is a Central Act and Section 60 is attracted to the present facts. 60: Right to mortgagor to redeem. 12. On the other hand the submissions made by the learned counsel for the respondent were that the present suit has been filed under Transfer of Property Act, which is a Central Act and Section 60 is attracted to the present facts. 60: Right to mortgagor to redeem. “ At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgagee deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee; (b) where the mortgee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor; and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct or to execute and (where the mortgage has been effected by a registered instrument) to have registered on acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties, or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that if the time fixed for payment of the principal money has been allowed to pass or on such time has been fixed; the mortgagee shall be entitled to reasonable notice before payment or tender of such money. 13. It is therefore, clear from the above discussion that the remedy available to a mortgager was to apply for redemption of mortgage before the Collector which was not available once the application has been dismissed by the Collector. It follows from this discussion that the proceedings before the Collector are of summary nature and an alternative remedy has been provided to the mortgagor to apply to the Collector for redemption of mortgage, but once that remedy is not available to mortgagor or a mortgagor who had purchased the mortgagee rights, there is no bar to file the suit for possession by way of redemption on payment of mortgage money. The learned appellate Court had considered this question and had observed that the mortgage was effected on 15.3.1970 and was got registered also and the suit was filed on 22.5.1999 within a period of 30 years and as such the plaintiff was entitled to redeem the land by filing a Civil Suit and there was no bar to the plaintiff to file the suit and the Civil Court could take cognizance under Section 9 of the C.P.C . 14. In view of above discussion, it follows that the findings of learned Additional District Judge are based on correct appreciation of law and dismissal of the application before the Collector does not bar the filing of a suit and, as such, the present suit was maintainable and the appeal was rightly allowed by the learned appellate Court. 15. In view of above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly.