R.S.A No.1858 of 2005 (O&M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision : November 07, 2008
1. R.S.A No.1858 of 2005
2. R.S.A No.1859 of 2005
Hanumant Singh & others vs Sonu & another
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CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
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Present : Mr.H.S.Hooda, Sr.Advocate with
Mr.Suraj Mal Kundu, Advocate
for the appellant.
Mr.Alok Jain, Advocate
for the respondents.
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1. Whether Reporters of Local Newspapers 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 ?
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AJAY TEWARI, J
This order shall dispose of R.S.A Nos.1858 and 1859 of 2005,
as common questions of law and facts are involved therein. For the sake of
convenience, facts are being extracted from RSA No.1858 of 2005.
This appeal has been filed against the judgment and decree,
dated 17.3.2005, whereby the learned District Judge, Sonipat accepted the
appeal of the mortgagor and permitted redemption.
The essential facts giving rise to this appeal are that the
plaintiffs/respondents No.1 and 2 filed a suit alleging that their
predecessor-in-interest Raghubir Singh had mortgaged the land in dispute
R.S.A No.1858 of 2005 (O&M) ::2::
initially vide mortgage deed dated 21.7.1982 and again by subsequent
mortgage deed dated 15.7.1988. It was also alleged that Raghubir Singh
aforesaid had, in a family settlement dated 13.7.1988, made over the land to
the plaintiffs and, thus, could not execute a fresh mortgage on 15.7.1988. It
was further alleged that Raghubir Singh had not been heard of since
September 1988 and that consequently he could have to be declared dead.
The appellants also filed a suit for declaration that they had
become owners of the land in dispute since Raghubir Singh had not
redeemed the property, despite proceedings under Section 8 of the Bengal
Regulations Act.
The learned trial Court accepted the pleas of the appellants and
consequently decreed their suit while dismissing that of the respondents.
In appeal, the learned lower appellate Court set aside the
findings regarding validity of proceedings under Section 8 of the Bengal
Regulations Act and consequently held that the respondents had the right to
redeem the property in dispute.
Learned counsel for the appellants has pressed the following
questions of law :-
” i) Whether non-mentioning of notice of redemption
in the publication is a material defect in the notice under
Section 7 of the Bengal Regulation Act and the judgment
passed under Section 8 of the Act can be ignored in the
subsequent suit ?
ii) Whether a petition allowed under Section 8 of the
Bengal Regulation Act can be ignored without
challenging the same ?
R.S.A No.1858 of 2005 (O&M) ::3::
Iii) Whether the provisions of limitation of 3 years will
apply challenging the order of the District Judge passed
on the application under Section 8 of the Bengal
Regulation Act and whether the limitation will
commence from the date of judgment or from the date of
death of the mortgagor ?
In my opinion, all the three questions now proposed have been
dealt with by the learned lower appellate Court. As far as question No.1 is
concerned, the learned lower appellate Court has quoted relevant portion of
the notice of the proceedings under the Bengal Regulation Act, which was
published in a newspaper, and reads as under :-
“In the above noted case, the aforesaid respondent
intentionally avoids the service of summons and he has
concealed his presence. So, this publication is issued
against the said respondent that if he does not appear
before the Court at 10 A.M on 13.11.90, ex-parte
proceedings will be taken against him.”
A perusal of Section 8 of the Bengal Regulation Act shows that
it is imperative for a notice to contain stipulation regarding the fact that in
case the mortgagor does not redeem the property within one year, the
mortgage will be finally foreclosed. In my opinion, there can be no error in
the view taken by the learned lower appellate Court that the notice was,
thus, defective.
As regards question No.2, the learned lower appellate Court
relied upon the following judgments :-
“1. Khan Bahadur Mehrban Khan vs Makhna and
R.S.A No.1858 of 2005 (O&M) ::4::
others, AIR 1930 (Privy Council) 142.
2. Jadam Jampur Bai alias Venkamma vs Jinki Siddappa
and another AIR (31) 1944 Madras 237.
3. Om Parkash vs Jagat Ram, 1972 Current Law Journal
386.
4. Murarilal vs Devkaran, AIR 195 Supreme Court 225.
5. Banwari Lal vs Puran Chand and others, 1985 PLJ
151.
6. Hukmi and others vs. Bharat Singh and others,
(1997-1) PLR 272.
7. Shib Lal vs Badle Ram, 1969 CLJ 294.
8. Ahsan Elahi vs Alla-ud-Din, AIR 1938 Lahore 809.
9. Munshi Ram vs Nauranga and others, AIR 1924
Lahore 176.
10. Jagni Mal vs Bishambar Dayal and others, 1965
PLR 63.”
The learned lower appellate Court ultimately held that since the
condition of sale in a mortgage deed is a clog on the activity of redemption,
the provisions of Section 8 of the Bengal Regulation Act have to be strictly
complied with. Further, in my opinion, the respondents not being party to
the earlier proceedings which, as shown above were vitiated, could
straightway sue for redemption of the property.
As regards the third question, it is to be noticed that the
respondents, as seen above, were not party in the earlier proceedings and
they are now suing as successors of Raghubir, the presumption of whose
civil death could not be raised before September 1995, whereafter they filed
R.S.A No.1858 of 2005 (O&M) ::5::
the suit within a few months. Thus, the suit cannot be held to have been
barred by limitation.
Consequently, I answer all the questions posed against the
appellants and in favour of the respondents. The appeal is, therefore,
dismissed with no order as to costs.
( AJAY TEWARI ) November 07, 2008. JUDGE `kk'