HARBANS SINGH ETC. versus GURAN DITTA SINGH ETC

Citation: [1991] 1 S.C.R. 614 · Decided: 20-02-1991 · Supreme Court of India · Bench: N.M. KASLIWAL · Disposal: Dismissed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
HARBANS SINGH ETC. 
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v. 
GURAN DITTA SINGH ETC. 
FEBRUARY 20, 1991 
[N.M. KASLIWAL AND K. RAMASWAMY, JJ.] 
Redemption of Mortgages (Punjab) Act 2 of 1913-Sections 4, 12 
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and 13-Application for redemption dismissed-Whether mortgagor's__>...___ 
right of redemption barred-Whether suit for redemption under section 
60-Transfer of Property Act maintainable and civil court has juris-
diction. 
Kala Singh predecessor of the respondents executed three 
mortgages hypothecating agricultural lands in favour of the appellants. 
The mortgagor filed an application under Section 4 of the Redemption , . 
of Mortgages (Punjab) Act 2 of 1913 and sought redemption of the r 
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mortgages, by paying Rs~lO jn respect of each of the mortgage. The ' 
parties compromised regarding the amount payable and the Collector 
passed the order on compromise under Section 11 of the Act on Feb. 
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3, 1964. The mortgagor having committed default in making the pay-
ment within the time allowed for the purpose, the petitions were dismis-
sed by the Collector. Thereupon the mortgagor filed three separate 
suits against each mortgagee for redemption within one year under ~,.l~ 
, Section 12 of the Act on June 12, 1964 and during the pendency of the 
suits, he having died the suits were dismissed. The respondents after 
obtaining mutation of their names in the revenue records, filed separate 
suits for redemption of the mortgages but beyond one year as contemp-
lated under section 12 read with Art. 14 of the Limitation Act 1908. The 
suits were dismissed by the trial court; which order was later affirmed 
both by the first appellate Court as also by the High Court. On a further 
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appeal under the Letter Patent Act, the Division Bench of the High ~ 
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Court allowed the appeals and set aside the judgnients and Decrees of 
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the courts below and granted decree of redemption holding that the 
suits were not barred by limitation. The appellants have tlius filed these 
appeals after obtaining special leave. The appellants have reiterated 
their contention amongst others that the suits were barred by limitation 
and further the High Court was not right in applying the provisions of 
Section 60 of the Transfer of Property Act. 
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Dismissing the appeals this Court, 
(514 
HARBANS v. G.D. SINGH 
615 
_ ~ 
HELD: Section 13 creates a bar to make any further petition 
, under the Act by the mortgagor or his successor in interest. A reading 
of Section 12 clearly postulates that the aggrieved party, be it 
mortgagor or mortgagee, against an order made under ss. 6 to 11 is 
empowered to institute a suit to establish his right in respect of the 
mortgage. Subject to the result of the suit, the order passed by the 
Collector shall be conclusive. Article 14 of the Limitation Act, 1908 
which is equivalent to Article 100 of the Limitation Act, 1963, prescribes 
___.l- Iimitation of one year from the date of the decision or the order of the 
officer of the Government in his official capacity. Article 61 of the 
present Limitation Act provides 30 years for redemption and recovery of 
the possession of the hypotheca. The limitation of 30 years runs from 
~· the date when the right to redemption or possession accrues. Articles 
105, 134 and 145 of the old Limitation Act would apply to the present 
litigation and the limitation is 60 years. [ 619A-C] 
The creation of mortgage is an act intervivos and not a statutory 
or common law right. The Act accords summary remedy and the 
default of compliance entails with dismissal of the application and 
section 13 prohibits second application for the self same relief. The 
remedy of civil suit for redemption available at common law, subject 
to limitation, is not taken away. Civil suit is not a declaratory suit, but 
, one to redeem the mortgage and to recover possession of mortgage 
-_..1.... property. [621B-C] 
ID the instant case, app_lying the principle of justice, Equity and 
Good conscience though section 60 of the Transfer of Property Act, per 
se, did not apply, the principles in section 60 would apply. [ 622G] 
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B 
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Though the application for redemption was dismissed under 
section 11 of the Act and became conclusive under section 12, the 
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_ --f--- mortgagor's right to redemption is not barred. A suit for redemp-
tion under section 60 of the Transfer of Property Act will be main-
tainable and civil court has jurisdiction to grant the decree of 
redemption. [622G] 
I 
The suits for redemption

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