Nek Singh and Others vs Bhag Stngh and Others

D.S. Tewatia, J.—The question that falls for consideration in this petition, which arises from suit No. C. Order 3 of 1985, is as to whether the trial Court ought to have tried issue No. 1, "whether the orders dated 5-1-1979 and 3-3-1980 passed by the High Court and the executing Court respectively are without jurisdiction", as a preliminary issue in terms of Order 14, rule (2) Code of Civil Procedure. Before dealing with this question, it would be necessary to advert to the background facts:-

Facts preceding the filing of the present suit, can be stated thus: The land in dispute originally belonged to one Amar Singh. After his death, it was mutated in the names of Bhag Singh and others. Hazura Singh, claiming himself to be the adopted son of said Amar Singh, filed a suit for possession of the estate of Amar Singh, in question, alleging that the said Bhag Singh and others were not the heirs of Amar Singh and they were mere tres-passers. Since part of the land was under two separate mortgages, so the two sets of mortgagees were also impleaded as Defendants to the suit. The suit was decreed. The first appellate Court set aside the judgment and decree of the trial Court but, on an appeal at the instance of the Plaintiff, the High Court by its judgment dated 25-9-1970 rendered in Regular Second Appeal No. 662 of 1960 (Nek Singh etc. v. Bhag Singh etc.) restored the judgment and decree of the trial Court, dated, 31-7-1959. Nek Singh and others, successors-in-interest of Hazura Singh Plaintiff, took out execution of the decree dated 25-9-1970 as passed by the High Court. One of the judgment-debtors, namely, Jagta raised objections u/s 42(sic) of the CPC that as a result of the consolidation in the village, the land of Amar Singh stood amalgamated with his own holding and the Khasra numbers as given in the decree were no longer available. The executing Court dismissed the objections and an appeal against that order was dismissed by the first appellate Court. The matter then reached this Court in Execution Second Appeal No. 1806 of 1974 (Bhag Singh and Ors. v. Nek Singh and others) at the instance of judgment debtors and it was in the execution second appeal that this Court passed an order dated 5-1-1979 which in the suit is said to be without jurisdiction. After the decision of this Court, the matter went back to the executing Court before which again an objection was raised regarding the land under mortgage with Telu and others, Defendants No. 3 to the suit filed by the said Hazura Singh. The executing Court, vide its order dated 3-3-1980, dismissed the objections holding that the judgment-debtors were entitled to Rs. 275/-, the mortgage amount. It is thereafter that, instead of challenging the later order of the executing Court dated 3-3-1989. the judgment debtors filed the present suit challenging therein correctness of the two decisions dated 5-1-1979 and 3-3-1980 passed by the High Court and the executing Court respectively, on the ground that the Courts in question were not competent to pass the given orders. In this suit, issue No 1 already adverted to, was then framed by the trial Court. The Petitioners herein moved an application before the trial Court to try issue No 1 as a preliminary issue. The trial Court dismissed that application vide order dated 15-2-1985 which has been impugned in the present revision petition.

The question that falls for consideration is as to whether this issue is one which, in terms of Order 14, Rule 2(2). CPC. should have been tried as a preliminary issue. Relevant provisions of Order 14, Rule 2(2), Code of Civil Procedure, envisage two conditions precedent for an issue to be tried as a preliminary issue: (1) that the issue should involve only a question of law, and (2) that the given question of law should pertain to the jurisdiction of the Court. The trial Court dismissed the application of the Petitioners herein for trying the said issue as preliminary one, observing that the said issue could not be disposed of independent of the evidence as its fate did not depend purely on a question of law. It was also dependent upon question of tact as it would have to be determined by the Court whether the limitation for redemption of the mortgage had expired.

Mr. R.K Battas, learned Counsel for the Respondents, has canvassed that in determining the question as to whether the two orders in question, i.e. , one passed by the High Court and the other passed by the executing Court in its wake were within the jurisdiction of the given Courts, it would be necessary to go into the question of fact as to whether, when these orders were passed, the right to redeem the mortgages subsisted or not and that, in turn, was dependent on an answer to the further question as to whether by that date the period of limitation to redeem the mortgages bad or had not expired and, to determine the later question, it would be necessary to lead evidence regarding the dates on which the mortgages were executed and the other relevant facts. So, issue No. 1 could not be tried as a preliminary issue and the trial Court had rightly dismissed the application of the Petitioners herein.

In my opinion, the aforesaid contention is not relevant in view of the fact that the reasons given for treating the order of this Court and of the executing Court passed in the wake of the said High Court judgment as being without jurisdiction, is that these orders tantamount to be judgment and decree of redemption of mortgage as by these orders the possession of land under mortgages was ordered to be delivered to decree holders on payment of the mortgage amounts, which the given Courts, while executing the decree, cannot pass So, the primary question that the trial Court had to address itself to, was as to whether the judgment of this Court and the order of the executing Court amounted to decree of redemption. In deciding that question, no evidence wan required to be produced or gone into as would be presently shown

In determining that question, one may have first to see as to whether the judgments were so intended expressly and secondly, if not expressly, did they impliedly amount to be decree of redemption ? Since the matter had reached this Court in execution proceedings, it would be necessary first to advert to the objections that were raised by the judgment debtors Jagta, one of the judgment-debtors, had raised two objections: (1) that during the pendency of the suit, there had keen consolidation operations in the village with the result that Khasra number of the land, as given in the plaint and the decree dated 25-9-1970, were obliterated and, in their place, new Khasra numbers had been given It was also further mentioned that the land of Amar Singh stood amalgamated in the ownership land of the Appellants, i.e., the judgment debtors. While deciding the objections, the executing Court worked out the value of the land of Amar Singh and it came to the conclusion that the entire holding of Amar Singh deceased worked out to be 72 Kanals 9 Marias standard, out of which 36 Kanals 5 Marias standard stood included in 99 Kanals 9 Marias standard allotted as a result of consolidation operations to Jagta, Bhagta etc'', Appellants-judgment-debtors, and 36 Kanals 4 Marias standard formed part of 97 Kanals 4 Marias standard, which were allotted as a result of consolidation operations to Kenar Singh judgment-debtor. The executing Court, on the aforesaid findings, ordered that the Respondent-decree-holder should be made joint owner with the judgment debtors to the extent of 72 Kanals 9 Marlas standard. The executing Court, however, did not expressly work out the value of the area that was under mortgage, for the executing Court, on the basis of document Exhibit DH/1, came to the conclusion that the land under mortgage stood redeemed in the very life-time of Amar Singh, and, therefore, it was not necessary to work out the value of such land. When the matter reached this Court the arguments were confined to the right of the decree holders to the possession of the land under mortgage. It was canvassed before this Court that if the land had been redeemed by Amar Singh during his life time, then the question of Subjecting the decree by the trial Court in the suit filed by Hazura Singh "to mortgage", would not have arisen. Therefore, this Court sought a report in regard to the fact as to whether the mortgage of 23 Bighas 7 Biswas of land comprised in Khata No. 168, Khatauni No. 301, Khasra Nos. 653,654, 655, 656, 657, and 1473 in favour of Gurdit Singh, Hardit Singh, etc. had continued to exist till the filing of the execution application or, for that matter, till today and if the mortgage was redeemed, whether it was redeemed by Amar Singh or by the judgment debtors, and, further, if it was found that it was redeemed by Amar Singh and if it was further found that the land still continued to be under mortgage with the aforesaid mortgagees then to further determine as to who created the latter mortgage; and what was its effect. Regarding the ether mortgage in favour of Telu etc. of the land in Khata No. 169, Khatauni No. 302, Khasra Nos. 556 and 639, the High Court found as a fact that it was redeemed by the judgment-debtors themselves, vide Exhibit J D /1, mutation sanction, on 29-4-1955, where as the suit by Hazura Singh for possession against the judgment-debtors and the mortgagees was filed on 16-6-1955

7 In the report submitted by the executing Court in pursuance of this Court''s order dated 11-3-1976, it was mentioned that land measuring 23 Bighas 7 Biswas stood mortgaged initially in favour of Krishna, Deepa, Hazura Singh and others. This mortgage was redeemed, vide mutation No 1152, copy Exhibit X 3. which fact stands reflected in the Jamabandi Exhibit DH/1, that the said Amar Singh, on the very day on which he got the said land redeemed from Krishna, Deepa, Hazura Singh and others, mortgaged the same with Gurdit Singh, Hardit Singh etc. for a sum of Rs. 2,000/- and a mutation in that regard No. 1153, Exhibit X 4, was sanctioned on 21st of Sravana 2002 Bk; that the aforesaid mortgage in favour of Gurdit Singh, Hardit Singh etc split up between the two sets of alleged successors-in-interest of Amar Singh comprising of the judgment debtors herein and these two sets of successors-in interest stood substituted as mortgagors of their respective shares in the revenue records in place of Amar Singh and they got the said mortgage redeemed from Gurdit Singh, Hardit Singh, etc , mortgagees, vide mutations Nos. 1907 and 1908, Exhibits X-l and X-2 respectively, which were sanctioned on 17-10-1974, on payment of Rs. 2,000/- as mortgage amount

It was then argued on behalf of the judgment-debtors in this Court that since the decree for possession in favour of the decree holders was subject to the rights of the mortgagees and the mort-gage in favour of Gurdit Singh, Hardit Singh etc being dated 21st Sravana 2002 Bk, so the right to redeem the same stood barred. The judgment-debtors having purchased the mortgagee rights of Gurdit Singh, Hardit Singh etc. , they, therefore, merely stood in their shoes as mortgagees and thus the decree-holders could not take possession of 23 Bighas and 7 Biswas of land from them. This Court disposed of the above-said contention, by its order dated 5-l-1979, with the following observations:-

After giving the matter my careful consideration, I am of the opinion that the judgment-debtors are entitled only to the mortgage-amount paid by them to Gurdit Singh, Hardit Singh etc , the mortgagees, or their successors-in-interest, as the case may be. The decree for possession of the land mentioned in the decree is already there and it is the duty of the executing Court to deliver the possession of the said land to the decree holder. The expression "subject to the right of the mortgagees" in the decree amounts to nothing more than this that the mortgagees �hall be paid the mortgage-amount before they are divested of the possession of the land and not that there has to be a second round of litigation between the decree-holder and the mortgagees In this case, the only difficulty raised is by the fact one of the co-mortgagees had died and his sons had not been impleaded as a party to the original suit, while the other co-mortgagees were already a party. An objection raised on behalf of the judgment-debtors that heirs of the said deceased co-mortgagees were a necessary party was decided against them The position might have been different if the said co-mortgage had not been redeemed and if the mortgagees had continued to be in possession, then, perhaps, in pursuance of the decree for possession, the heirs of the said deceased co mortgagee may not be dispossessed without the mortgage being redeemed in accordance with law, but even the heirs of the said deceased co-mortgagee parted with the possession of the land on receiving their share of the mortgage-amount from the judgment debtors.

The contention advanced on behalf of the Appellant judgment debtors that they merely purchased the mortgagee rights and had not redeemed the mortgage, for only a mortgagor could redeem the mortgage and not an outsider, cannot be of any avail to them, for the simple reason that the judgment-debtors alone stood recorded in the revenue records till then as the heirs of Amar Singh and as mortgagors in place of Amar Singh and thus they alone could redeem the mortgage and nobody else for till then the decree had not been executed and had not been given effect to.

The perusal of the judgment of the trial Court passed in the slit No, 35 of 16-6-1955 of Hazura Singh, predecessor-in-interest of the Petitioner-decree-holders, would show that he bad sought possession, in the first instance of the entire land from the judgment-debtors Defendant No. 1, the predecessor-in-interest of the Respondents herein and had also claimed possession of 23 Bighas and 7 Biswas of land from Defendant No 2 who was in possession as mortgagee, on payment of Rs. 2000/- as mortgage-money, and of the area measuring 15 Bighas 13 Biswas on payment of Rs. 275/- as mortgage-money from the other mortgagee who was Defendant No. 3. In view of the above, the mortgagees had been impleaded as Defendants to that suit. The trial Court, no doubt, mentioned that the mortgagees were not necessary parties while dismissing the application of Hazura Singh for bringing on the record the son of Hardit Singh, one of the mortgagees, who had died during the pendency of the suit, by observing that no relief was claimed against Defendant No. 2 or the sen of late Hardit Singh.

Assuming for the sake of argument that the said judgment of the trial Court, dated 31-7-1959. decreeing the suit of Hazura Singh, did not envisage decreeing of the suit against the mortgagees and that it could not be said that the judgment of trial Court, dated 31-7-1959, amounted to a decree of redemption qua the Defendant-mortgagees, then too, the judgment of this Court dated 5-1-1979 and the order of the executing Court dated 3-3-1980 would not amount to be decree of redemption.

Since the judgment-debtors, on the dates on which they paid off the mortgagees, were recorded as owners of the land in the revenue record, they alone were entitled to redeem the mortgage By paying the mortgagees, it could not be said that they were substituting themselves either as mortgagees in place of earlier mortgagee. In the circumstances, the executes Court. while executing the decree-holders qua the. judgment-debtors to the possession of entire land. It was only qua the mortgagees that their rights were subjected to the mortgage Since the judgment debtors, in their capacity as ostensible le owners and thus mortgagors, had redeemed the mortgages before the decree could be executed and thus came into possession of the mortgaged land, so, in view of that development, the executing Court was in a position to execute the decree in its entirety against the judgment-debtors which it did and no more In doing so, it acted squarely within its jurisdiction as an executing Court and the order neither of the High Court dated 5-1-1979 nor that of the executing Court dated 3-3-1980 amounted to be a decree of redemption when it directed delivery of possession of the lard which was under mortgage and had been redeemed by the judgment-debtors before the final execution of the decree.

For the reasons aforementioned, the revision petition is allowed and the order of the trial Court, dated 15-2-1985, is quashed.

At this stage, the learned Counsel for the Respondents and for the Petitioners, who are also counsel for the parties in the suit, have agreed (in view of the findings recorded above, while disposing of the revision petition that the High Court and the executing Court had the jurisdiction to pass the orders, dated 5-1-1979 and 3-3-1980 respectively), that the suit may also be disposed of together with the revision petition.

Before dealing with the suit, it may be mentioned that, vide order dated 13-9-1985, this Court while admitting the revision petition also directed the transfer of the present suit to its own file for trying it along with the revision petition, because the parties had been litigating for the last thirty years and the suit on the face of it appeared to be frivolous and on attempt on the part of the judgment debtors to prolong their illegal possession and stall the final execution of the decree. Vide this Court''s order dated 13-9-1985, it was ordered that the hearing of the revision petition would be taken up first and the suit (C.O. 3 of 1985) shall be kept pending, though it would be listed along with the revision petition for appropriate orders every time the revision petition would come up for hearing, and that is how this suit is before this Court.

Since the fate of the suit is dependent on the answer to the question as to whether the judgment of the High Court dated 5.1.1979 and that of the executing Court dated 3-3-1980 were passed without jurisdiction and an answer to that has been given above in the negative. In view of this, nothing further remains in the suit to be decided. The answer to the above question, in other words, the answer to issue No. 1 in the suit being against the Plaintiff, the suit, therefore, shall have to be dismissed. I, therefore, dismiss the suit with costs.