Mukand Lal and Others vs Ballu Singh and Others

K.P. Bhandari, J.—This is defendants second appeal against the judgment and decree passed by the Additional District Judge, Ferozepore.

The facts of this case are not in dispute. Briefly, the defendants alongwith other co-owners mortgaged land measuring 69 Kanals 14 Marias for a sum of Rs. 1000/-. Earlier mortgage is dated 26-1 1 -1 954 for a sum of Rs. l000/-. This is recorded in the Jamabandi. Assistant Collector redeemed the land on 21-21985. The defendants had one-half share in the land. The other co-owners did not join hand with the defendants for moving application for redemption. Consequently, the defendants appellants filed an application u/s 3 of the Redemption of Mortgages Act, 1913 (Act No. 2 of 1913) (hereinafter referred to as the Act) before the Assistant Collector for redemption of land on payment of Ks 502/-being his half share of the mortgaged amount. Notice of the said application was issued to tae plaintiffs-respondents by the Assistant Collector. The plaintiffs filed reply to the application wherein they raised an objection that the applicant could not seek redemption on payment of one half share of the mortgaged amount, in view of the provisions of Section 60 of the Transfer of Property Act. when the case came up for hearing before the Assistant Collector, the learned counsel for the plaintiffs did not urge this objection The Assistant Collector vide order dated 21-2-1985 ordered redemption of one half share of land of the defendant on payment of Rs. 502/-. Aggrieved against the order of the Assistant Collector, the plaintiffs filed a suit for declaration as provided in section U of the Redemption of Mortgage Act. The sole ground taken in the suit by the plaintiffs was that the defendant was not entitled to dm redemption on payment of one-half share of the mortgaged amount in view of the provisions of Section 60 of the Transfer of Property Act This argument found favour with the trial Court and the suit was decreed by the learned Subordinate Judge vide judgment and decree dated 6-11-1987.

Aggrieved against the aforesaid judgment and decree of the trial Court, the defendants preferred an appeal before the District Judge which was dismissed by the Additional District Judge on 6 -12-1988. This is how, the matter has come up before this Court id Regular Second Appeal filed by the defendants-appellants.

In this case I issued notice of motion to the respondents and called for the record. A proper opportunity was given to the parties to inspect the record and address arguments in detail The hearing of the case continued for several days. It was clearly told lo the counsel for the parties that the Court wants to dispose of the appeal finally at the time of motion hearing itself But Shri A. N. Mittal, counsel for the respondents argued that the appeal could not be finally disposed of by the Court at the motion hearing. He relied on the provisions of Order 41 Rules 11 and 12 of the CPC in support of his submission. I do not find arty restriction or limitation on the powers of the Court. Under Order 41, Rules 11 and 12 of the Code of Civil Procedure, the Court at the motion hearing can dismiss an appeal. There is no restriction on the powers of the Court that if in a given case the Court considered the hardship and after going through the record, can allow any appeal. It must be pointed out that the Redemption of Mortgages Act has been enacted by the Legislature to provide expeditious remedy to small land-owners to secure redemption of land in summary proceedings. The Legislature has not provided any appeal or revision against the order of the Assistant Collector. The order of the Assistant Collector is final subject to a right to file a suit u/s 12 of the Act. If "e see the policy of the Act, it is incumbent that such a suit when filed in the Civil Court should also be expeditiously disposed of. In the present case, the suit was filed as back as on 25-2-1985 and it has taken so many years to reach in this Court in Regular Second Appeal. If the present appeal is only admitted, in view of the present pendency of cases in this Court, it will take at least a decade for being listed for final hearing. In my view the provisions of the CPC are intended to dispense justice to the litigants and they are not intended to put any restriction of limitation on the Court in dispensing the immediate justice in appropriate cases. The Supreme Court in Sangram Singh v. Election Tribunal A.I. R. 1955 S. C., observed as under :-

"A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; cot a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to ''both'' sides) lest the very means designed for the furtherance of justice be used to frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course there must be exceptions and where they are clearly defined they must be given effect to But taken by an large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

As a matter of fact, the procedure of issuing notice of motion in the Regular Second Appeal has been evolved by this Court so that parties should be afforded opportunity of hearing. In [the instant case, the records have been summoned and row when both the parties have been heard in detail and the whole records have been perused and considered, it is very difficult to understand that the Court can only dismiss the appeal but cannot grant immediate relief to the litigants, if the ends of justice so required.

On a plain reading of tie provisions of Order 41 Rules 11 and 12 of the Code of Civil Procedure, I do not find any force in the submission made by the counsel for the respondents. It must be noted that the Supreme Court while considering the Special Leave to Appeal has been allowing the appeal straightaway at motion hearing. Reference may be made to the decisions of the Supreme Court reported in 1990 Judgments Today 58, 68, 74 and 1991 Judgments Today 19, 39, 108. In view of the above discussion, E repel the objection of the counsel for respondent as it has no merit

The Courts below have declared the order of the Assistant Collector illegal, null and void ordering redemption of the land of the share of the defendants on payment of their share of the mortgage amount i e. Rs. 502/- on the ground that according to Section 60 of the Transfer of Property Act, a partial redemption cannot be ordered Admittedly, the defendants are the mortgagor of one-half share of the land The application for redemption was filed within limitation. There is no objection that the defendants-appellants were not entitled to redeem the land in dispute. The only objection raised is that in view of Section 60 of the Transfer of Property Act, the partial redemption could not be ordered. It is very difficult to uphold the view of the Courts below on this point. Section 60 of the Transfer of Property Act is not applicable to Punjab The general principle of the Transfer of Property Act which are in consonance with justice, equity and good conscience are followed by the Courts in Punjab. The Redemption of Mortgages Act no where lays down that the principle of Section 60 shall apply to the proceedings So Section 60 of the Transfer of Property Act in its rigidity could not be applied by the Collector and, therefore, the Collector has rightly ordered the redemption of land on payment of Rs. 502/-.

It is important to note that when the matter came up before the Assistant Collector for final hearing the counsel for the respondent did not raise this objection nor did he invite Assistant Collector''s decision on this objection. On the date the Assistant Collector passed the order, the right of redemption of the co-owner to seek redemption of his share of land had extinguished. The plaintiff martgagees had become the owners of other one-half share. of the land. Due to the expiry of the limitation for redemption of other half share of the land arid as much as the mortgagee became the full owner of the half share It the plaintiffs had raised the objection regarding partial redemption at the lime of hearing before the Assistant Collector, the Assistant Collector was empowered to direct u/s 8 of the Act to the defendants to deposit the fall amount of Rs. 1,004/- But no such objection was taken because the objection did not survive on the date of the order because the plaintiff mortgagees had become the owners of the other half. In view of the fact that the plaintiff mortgagees had become the owners of other one half share of land because of expiry of limitation. Section 60 of the Transfer of Property Act has no application. The findings of the Courts below are based on misapprehension of correct factual position and legal position Therefore, the judgments and decrees of the Courts below cannot be upheld.

It can be noted that even in a case where Section 60 of the Transfer of Property Act can apply, the Civil Court at the most could (sic) that the redemption will take effect on payment of full mortgage amount but no fault can be found with the order of redemption. It is very difficult to uphold the objection that the application for redemption filed within limitation by a person who is legally entitled to redeem the same should be non suited on this hyper technical objection which is based on complete sis-reading of the provisions of Section of the Transfer of Property Act The true interpretation of Section 60 of this aforesaid Act is that the Court should protect the security of the mortgagee, in such situation the Court can order that the redemption can take effect on payment of full mortgage amount.

For the reasons aforesaid, I allow this appeal and set aside the judgments and decrees of the Courts below and dismiss the suit of the plaintiff-respondents. However in the peculiar facts of the case, there will be no order as to costs.