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Allahabad High Court
Kharag Singh And Ors. vs Kiddha on 17 February, 1926
Equivalent citations: AIR 1926 All 667
Author: K Lal


Kanhaiya Lal, J.

1. This appeal arises out of a suit for the redemption of a mortgage of an occupancy holding, effected by Murli Singh, the brother ami predecessor of the plaintiff in favour of Gopal Singh, the predecessor of the defendants, on the 3rd February 1880. The mortgage was with possession and provided for the payment of the mortgage money within 12 years. It further contained a stipulation that if the mortgage was not redeemed within 12 years it would be treated as a sale.

2. The contention of the defendants was that by reason of the above stipulation they had become owners of the occupancy holding. That contention was repelled by both the Courts below on the ground that the above covenant operated as a clog on the equity of redemption and was therefore unenforceable. The mortgage was effected when the Bengal Regulation (17 of 1806) was in force. Prior to the passing of that regulation a mortgage by conditional sale executed itself on breach of the condition and operated as an absolute sale, without any further act of the parties and intervention of the Court. Bengal Regulation (17 of 1806), however, laid down certain rules and procedure which the mortgagee had to follow before he could convert his conditional sale into an absolute one.

3. In the present case the right of the mortgagee to enforce that covenant accrued after the Transfer of Property Act came into force, and though Section 2 of that Act provides that nothing therein contained shall affect any right or liability arising out of a legal relation constituted before that Act came into force, or any relief in respect of any such right or liability a distinction must be drawn between the relief to which a person is entitled and the mode or procedure for obtaining such relief. As pointed out in Bhobo Sundari Debi v. Rakhal Chunder Bose (1886) 12 Cal 583 (F B) while a statute cannot take away vested rights unless it is declared to be retrospective, yet in a matter of procedure it governs all proceedings instituted or to be instituted. The procedure provided by the Bengal Regulation (17 of 1806) which was repealed by the Transfer of Property Act (4 of 1882), was different from that provided by the latter Act. But as the cause of action accrued when the latter Act came into force, it was incumbent on the mortgagee, or his legal representative, to adopt that procedure to enforce the covenant on which they relied. The introduction of the new procedure did not affect the right or liability of the mortgagor, or the relief in respect of such right or liability to which the mortgagee was entitled, but it affected the procedure for enforcing that right or liability or obtaining that relief. In Ganga Sahai v. Kishen Sahai (1884) 6 All 262 where a mortgagee by conditional sale under an instrument executed, while Regulation 17 of 1806 was in force and before the Transfer of Property Act of 1882, which repealed that Regulation came into force, sued after the repeal of that Regulation, for the foreclosure of the mortgage, it was held that the provisions of the Transfer of Property Act wore applicable to the suit. In Fateh Chand v. Muhammad Bukhsh (1894) 16 All 259, and Bikkina Ramyya v. Adalala, Seshayya AIR 1917 Mad 232 it was held that a right to obtain a relief, arising from a certain jural relation existing between the parties was a matter of adjective law and that there was no vested right in any particular form or procedure.

4. There is no allegation in this case that the procedure provided by the Bengal Regulation (17 of 1806) had at any time been followed by the mortgagee to foreclose the mortgage. ID fact the regulation was repealed before the plaintiff had a cause of action to enforce any such remedy. No question of a clog on the equity of redemption arises, because the mortgage has not yet in fact been foreclosed either in the manner provided by Bengal Regulation 17 of 1806 or in the manner prescribed by the Transfer of Property Act IV of 1882; and the right of the plaintiff to redeem the mortgage unquestionably subsists. No tender of the mortgage money before the suit was necessary. The appeal is dismissed.

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