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PETITIONER: SHEO LAL AND ORS.

       Vs.

RESPONDENT: SULTAN & ORS.

DATE OF JUDGMENT: 15/09/1969

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAMASWAMI, V. GROVER, A.N.

CITATION:  1971 AIR   93            1970 SCR  (2) 405  1969 SCC  (2) 883  CITATOR INFO :  RF         1991 SC1600  (8)

ACT:     Redemption of Mortgages (Punjab Act 2 of 1913) ss. 4,  9 and   12--Application  for  redemption  of  mortgage   under s.4--Assistant  Collector dismissing application  relegating parties to suit in view of complicated questions of fact and law involved--If Art. 14 of Limitation Act, 1908  applicable to subsequent suit for redemption.

HEADNOTE:     In August, 1935 the owner of a piece of land mortgaged a part  of  it without possession to M.  In November  1914  he mortgaged  the entire area of the land to A.  Thereafter  he sold his rights in the land (except in a small area) in May. 1943 to the plaintiffs.  In May, 1951 the plaintiffs applied under s. 4 of the Redemption of’ Mortgages (Punjab Act 2  of 1913)  for  redeeming the mortgage in favour of M  but  this application was rejected by the Assistant Collector on  June 29,  1951.  A suit  filed by the plaintiffs in August,  1960 in  a  civil  court  for  redemption  of  the  mortgage  was resisted, inter alia, on the ground that it was  time-barred by virtue of Art. 14  of the Limitation Act, 1908 as it  was not   filed  within  one  year  of  the  rejection  of   the application  by  the Assistant Collector.  The  trial  court dismissed the suit for redemption of the mortgage in  favour of  M  and  granted a decree for redemption  of  the  second mortgage of November, 1941.  The District Court, allowing an appeal,  ordered  redemption  of  the  land  including   the mortgage  in favour of M and this decision was confirmed  in second  ’appeal by the High Court.  There was  a  concurrent finding by the courts below that the petition for redemption was  not tried by the Assistant Collector on the merits  but that  he  rejected it holding that  the  application  raised complicated  questions of fact and law and on  that  account was  not  triable in exercise of’ the  summary  jurisdiction prescribed under Act 2 of 1913. On appeal by special leave to this Court. HELD: Dismissing the appeal.     The suit for redemption filed by the plaintiffs was  not

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barred by the Law of Limitation.     The  Assistant  Collector merely ordered that  the  case raised complicated questions of fact and law which could not be  tried in a summary proceeding.  ’Such an order does  not fall within the terms of s. 9 of Act 2 of 1913.  Even if  by the  order the petition was dismissed, not the form  of  the order,  but its substance will determine the application  of the  period  of  limitation prescribed by  Art.  14  of  the Limitation  Act.   An order relegating the  mortgagor  to  a civil  suit for obtaining an order of redemption even if  it becomes  final  does not bar a suit for redemption.  for  it raises no cloud on the title of the mortgagor arising out of the mortgage.  Such an order is not one which is required to be  set  aside.  An order required to be set  aside  is  one which the officer making it has jurisdiction to make it  and has the effect of barring the claim for relief unless it  is set aside. [410 F-H] L2Sup(CI)/70--14 406     Tulsi Das v. Diala Ram, I.L.R. [1944] Lab.  1 (F.B.) and Dewan  Chand v. Raghbir Singh, I.L.R. [1966] 1  Punjab  193; referred to and approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1115 of 1966.     Appeal  by  special leave from the judgment  and  decree dated November 18, 1965 of the Punjab High Court in  Regular Second Appeal No. 1169 of 1962. Rameshwar Dial and .4. D. Mathur, for the appellants.     K.S. Chawla, K.L. Mehta and S.K. Mehta, for  respondents Nos. 1 to 7. The Judgment of the Court was delivered by     Shah,  J.   Ram Sarup was the owner of a piece  of  land measuring  30 bighas 12 biswas. By a deed dated  August  16, 1935,  Ram Sarup mortgaged without possession a part of  the land  measuring approximately 26 bighas with one Meda.   Ram Sarup  on November 27, 1941, mortgaged with  possession  the entire area of the land to Ananda.  Ram Sarup then sold  his rights in 27 bighas and 1 biswa of the land on May 14,  1943 to  Buru  and others--who may be  collectively  called  ’the plaintiffs’--for Rs. 6,000.  The plaintiffs then applied  on May  23,  1951, under s. 4 of the  Redemption  of  Mortgages (Punjab) Act 2 of 1913 for redeeming the mortgage in  favour of  Meda.  This application was rejected on June  29,  1951. Thereafter  the plaintiffs instituted on August 20, 1960,  a suit in the civil court for redemption of the mortgage.  The suit was resisted, inter alia, on the ground that the period of limitation prescribed by Art. 14 of the Indian Limitation Act,   1908,  had  expired.   It  was  submitted  that   the plaintiffs  had  moved  an  application  for  redemption  of mortgage under s. 4 of the Redemption of Mortgages  (Punjab) Act 2 of 1913 but the same was dismissed oft June 29,  1951, by  the  Assistant  Collector and since no  suit  was  filed within  one year from that date, the suit for redemption  of the first mortgage in favour of Meda was barred.  The  Trial Court  dismissed the suit for redemption of the mortgage  in favour  of Meda, and granted a decree for redemption of  the second  mortgage  dated November 27, 1941.   The  plaintiffs appealed to the District Court, Gurgaon.  The District Court allowed  the  appeal  and ordered  redemption  of  the  land including the mortgage in favour of Meda.  The decree passed by the District Court was confirmed in second appeal by  the High  Court of Punjab  With special leave, this  appeal  has

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been preferred by sons of Meda.     The  record  of  the proceedings  before  the  Assistant Collector  was, it was reported, destroyed before  the  suit was filed, and an      407 extract  from the register of redemption applications  could be  tendered  in evidence.  The last column of  the  extract contained  the  entry:   "The application  is  rejected  and should be consigned to the record room".  An endorsement  on the  docket maintained by the Advocate who appeared  in  the case  before the Assistant Collector showed  an  endorsement dated June 29, 1951:  "Application rejected. The  petitioner has  today  been ordered to file a civil  suit."  The  Trial Court  and  the District Court held that  the  petition  for redemption  was  not tried by the Assistant  Collector;  he’ rejected  the petition holding that the  application  raised complicated  questions of fact and law, and on that  account was  not  triable in exercise of  the  summary  jurisdiction prescribed  under  Act 2 of 1913. With this  view  the  High Court agreed.     Counsel  for the appellants contends that the order   of the Assistant Collector rejecting the petition under s. 4 of the Punjab Act 2 of 1913 became final by virtue of s. 12  of the  Act  and  the mortgagor could not  sue  to  redeem  the mortgage in favour of Meda after the expiry of one year from the date of the order.     The  relevant provisions of the Redemption of  Mortgages (Punjab) Act 2 of 1913 may first be noticed.  By s. 4 it  is provided:                   "The mortgagor or other person entitled to               institute  a suit for redemption may,  at  any               time   after  the  principal   money   becomes               payable  and before a suit for  redemption  is               barred,  present a petition to  the  Collector               applying  for  an  order  directing  that  his               mortgage  be redeemed, and where the  mortgage               is   with  possession  that  he  be   put   in               possession of the mortgaged property. Sections  5, 6 and 7 deal with the procedure to be  followed in  the  trial  of applications under the  Act.   Section  8 provides:                   "Where  both  parties  appear   when   the               petition   is  called  on  for  hearing,   the               Collector  shall  enquire from  the  mortgagee               whether  he  admits  that  the  petitioner  is               entitled  to redeem, whether he is willing  to               accept the sum in deposit in full discharge of               the  mortgage debt, and where the mortgage  is               with  possession  whether he  is   willing  to               surrender    possession  of   the    mortgaged               property.                   If   the   mortgagee   replies   in    the               affirmative,  the  Collector  shall   make  an               order  as laid down  in section 6(a), (b), (c)               and (d) of this Act.               408               Section  9  on  which  reliance  is  primarily               placed provides:                   "If  the mortgagee raise’s   objection  on               any  ground  other  than  the  amount  of  the               deposit,  or if the petitioner is not  willing               to pay the sum demanded by the mortgagee,  the               Collector  may  either (a) for reasons  to  be               recorded  dismiss the petition, or (b) make  a               summary enquiry regarding the objection raised

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             by the mortgagee or regarding the sum due." Section  10 provides for enquiry into objections  raised  by the mortgagee, and s. 11 provides for enquiry regarding  the sum  due under the mortgage and further provides for  making deposit  by the mortgagor within the period to be  fixed  by the Collector.  Section 12 provides by the first paragraph:                   "Any  party  aggrieved by  an  order  made               under  sections 6, 7, 8, 9, 10 or 11  of  this               Act  may  institute a suit  to  establish  his               rights  in  respect  of  the  mortgage;   but,               subject  to the result of such suit,  if  any,               the order shall be conclusive." Article  14 of Sch. 1 of the Limitation Act, 1908,  provides that  a suit to set aside any act or order of an officer  of Government  in his official capacity, not  herein  otherwise expressly  provided for, shall be filed within one  year  of the date of the act or order.     We  are unable to agree with the appellant’s  contention that since no suit was filed within one year of the date  on which the application of the plaintiffs was rejected by  the Assistant  Collector, the order dismissing  the  application was   conclusive,  and  the  suit  for  redemption  by   the plaintiffs was not maintainable.  Section 9(1)(a)of the  Act authorises the Collector or dismiss the petition for reasons to  be recorded, where the mortgagee raises objection  on  a ground other than the amount of deposit or if the  mortgagor is  not  willing to pay the sum demanded by  the  mortgagee. There is no evidence that the mortgagor declined to pay  the sum  demanded  by  the’  mortgagee.   Again  the   Assistant Collector did not pass an order dismissing the petition  for any reasons recorded by him. He merely ordered that the case raised complicated questions of fact and law which could not be  tried  in a summary proceeding. Such an  order,  in  our judgment, does not fall within the terms of s. 9 of Act 2 of 1913.  Even if by the order the petition was dismissed,  not the form of the order, but its substance will determine  the application  of the period of limitation prescribed by  Art. 14 of the Limitation Act. An order relegating the  mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for  it raises no cloud on the title of the mortgagor arising out of the mortgage. Such 409 an  order is not one which is required to be set aside.   An order  required  to be set aside is one  which  the  officer making  it  has jurisdiction to make and has the  effect  of barring  the  claim for relief unless it is set  aside.  The order of the Assistant Collector merely declared the  rights of  the plaintiff under the common law: It did not  bar  the claim  to relief_   for redemption in a civil suit,  and  on that  account it was not an order which was required  to  be set aside.     Tulsi Das v. Diala Ram(1), Tek Chand, J., delivering the principal  judgment  of the Court dealt  with  the  question which  falls  to be determined in this  case.   The  learned Judge observed:                   "  ....  the suit referred to in s. 12  is               to  establish  the ’erroneous  nature  of  the               order’.   Now what is the error  committed  by               the Collector in his order which the mortgagor               must  seek to have set right by a  declaratory               suit ? No civil court can grant a  declaration               that the Collector’s view that the matter  was               too difficult for summary redemption was wrong               and  compel  him to proceed with  the  summary

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             enquiry.  The order of the Collector does  not               affect  the rights of the parties in any  way;               it is conclusive to this extent only that  the               petition  for  summary  redemption  has   been               dismissed and no other petition under the  Act               would   lie.   No  suit  under  s.  12   being               necessary  or competent, there was no  bar  to               the  mortgagor  suing for  redemption  in  the               civil courts within the period allowed by  law                             in ordinary course." The same view was expressed in a judgment of the Punjab High Court  Dewan Chand v. Raghbir Singh(2).  The Court, in  that case  pointed out, in our judgment rightly, that Art. 14  of Sch. 1 to the Limitation Act does not apply to a suit  which does  not seek to set aside the order of an officer  of  the Government.  When the Collector decides nothing against  the mortgagor and directs that the matter be settled in a  civil court, the Collector’s decision does not stand in the way of the suit for redemption. The appeal fails and is dismissed with costs. R.K.P.S. Appeal dismissed. (1)I.L.R.  [1944] Lah. 1 (P.B.) (2) I.L.R. [1966]  1  Punjab 193. 410