Gurbax Singh vs Jarnail Singh And Others on 1 September, 2009

R.S.A.No.1484 of 2006                                        1


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                R.S.A.No.1484 of 2006

                                Date of Decision : 01.09.2009

Gurbax Singh                                       ...Appellant

                                Versus

Jarnail Singh and others                           ...Respondents


CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA

1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?

Present: Mr. Kashmira Singh, Advocate,
         for the appellant.

          Mr. Tejinder Pal Singh, Advocate, for
          Mr. R.K.Girdhar, Advocate,
          for the respondents.

HEMANT GUPTA, J. (ORAL)

Defendant No.1 is in second appeal aggrieved against the

judgment and decree passed by the Courts below, whereby suit

challenging the order passed by the Assistant Collector Ist Grade, Jaitu,

on 18.2.1997 in terms of Redemption of Mortgagees (Punjab) Act, 1913,

was decreed.

I have heard learned counsel for the appellant on the following

substantial question of law :

“Whether there is any period of redemption of usufructuary

mortgage?”

One Kehar Singh was the owner of the suit land. He mortgaged

the suit land in favour of Hazara Singh, father of the plaintiff. Hazara
R.S.A.No.1484 of 2006 2

Singh executed a will in favour of the plaintiff and, thus, the status of the

plaintiff is that of a mortgagee. The defendant filed an application for

summary redemption in the Court of Assistant Collector Ist Grade, under

Redemption of Mortgagees (Punjab) Act, 1913 (hereinafter called as ‘the

Act’), which was allowed by the Assistant Collector vide the order under

challenge in the present suit.

As per the facts on record, earlier there was dispute regarding

inheritance of Hazara singh, which came to be decided by judgment and

decree dated 18.9.1974. The Regular Second Appeal before this Court

was dismissed. Further appeal was also dismissed by the Hon’ble

Supreme Court on 30.1.1996. The redemption application was filed on

23.7.1996. The defendant claimed that the time spent in the previous

litigation is liable to be excluded, therefore, the order passed by the

Collector is legal and justified.

The learned trial Court decreed the suit on the ground that the

question of limitation was required to be decided by the Assistant

Collector. The order passed is a non-speaking, non-descriptive and

passed without offering any opportunity of hearing. In appeal, it was

noticed that the land was under mortgage for a period of 70 years and that

the mortgagor could seek redemption within 30 years from the date of

mortgage and, thus, the application filed before the Assistant Collector is

beyond the period of limitation. It is admitted fact that the mortgage in

favour of the predecessor-in-interest of the plaintiff was a usufructuary

mortgage.

A Full Bench of this Court in Ram Kishan and others Vs.

Sheo Ram and others, AIR 2008 Punjab & Haryana 77, has held that
R.S.A.No.1484 of 2006 3

there is no period of limitation for redemption of such mortgage. It was

held that the principle that once a mortgage always a mortgage is

applicable to the usufructuary mortgages. In view of the decision of the

Full Bench, which is applicable to the facts of the present case in its

entirety, the plaintiff cannot be granted decree that the order passed by

the Assistant Collector is illegal and unwarranted. The mortgagor’s rights

cannot be said to be extinguished.

In view of the above, the judgment and decree passed by the

Courts below is set aside and the suit dismissed with no order as to costs.

01.09.2009                                      (HEMANT GUPTA)
Vimal                                               JUDGE