LexPRITHI NATH SINGH AND OTHERS versus SURAJ AHIR AND OTHERS
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:l02 SUPREME COURT REPORTS [1963) 1aoa PRITHI NATH SINGH AND OTHERS Dtcen,ber JO. 'IJ, SURAJ AHIR AND OTHERS (K. c. DAS GUPTA and RAGHUBAR DAYAL, JJ.) Land Reform-Vesting of land in ti,le Go1!ernment-Mort· ',_ gage money paid-Whether mortg1ge subsists until vesting - 1 Failure of mortgagee to perform his duti<S after reaipt of mortgage money-Right created in favour of mortgagor, if a right of redemption-Transfer of Property Act, 1882 (IV of 1882), ••· .58. 60-Code of Civil Procedure, 1908 (Act 5 of 1908), O. XXXIV, r. 7-Bihar Land Reforms Act, 1950 (Bihar XXX of 1950), as. 3. 4-Bihar Land R~form• Act, 1950 ns amended by Bihar Land R,forms (Amendment) Act, 1959 (XVI of 1959), s. 6 (1) (c). Th~ pr.-sent petitioners were respondents in C. A. No. 533/60 and the µ"sent respondents were the appel· lants in th•t appeal. The appeal wa• allowed by this Court on the gr~und that the respondents had lost their rigHt to recov~r possession from the appeHants on their estate v<Sting- in the State of Bihar by virtue of ss~ 3, 4 of the Bihar Land Reforms Act, 1950, and their having no subsisting right to recover 'pos~esdon from the appellant111. It was further held that they could not take advantage of the provisions of Y.· s 6 (1) (c) nf that Act as amended by Bihar Land Refo'ms (Amendment) Act, 1959 (Act XIV of 1959), as no mortgage subsisted on that date. In the present petition for review it is contended that the view that the mortgage was not subsist~ ing on the date of vesting is wrong because even though the respondent mort~agors had paid up the mortgage money the mortgage continued to subsist till the date of vesting as by that time the right ofredumption given bv s. 60 of rransfer of -~ Property had not come to an end. Reliance was placed by them, for this prop<,sition. on Thota Ohina Subba Rao v. Matlapalli Raju, [1949] F.C.R. 484. Held, that when the mortgage money is paid by the mortgagor to the mortgagee, there docs not remain any debt due from the mortgdgor to the mortgagee and therefore the mortgagor: can no longer contin11e after the mortg(\ge money is paid. The definition of usufructory mortgage it!'lelf leads to the conclusion that the authority given to the mortgagee to rewain in posse."-sion of the n1ort~aged property ceaSl"S wh«:"n the t- mortgage mnney has been paid up. If the mortga~e mone; has bef"n received by the mortgagee and thereaftre he refuses to perform the acts he is bound to do, the· mortagagor can - a s.c.R. SUPREME COURT REPORTS 303 enforce his rights to get back the mortgage documents, the possession the mortgaged property and the reconveyance of that property through court. This new right is not the same as his right of redemption .. The case relied on by the petitioners, does not deal with the circumstances under which the mortgage ceased to exist. What it Jays down is simply that the right of redemp- tion continues so long as the mortgage is alive. Thota Ohina· Subba Rao v. Mattapalli Raju, [1949] F.C.R. 484, explained. · There can be nothing for enforcing a mortgage when the money has been paid up and therefore the right to redeem ceases on payment of mortgage money. Samar Ali v. Karim-ul-lah I.L.R. 8 All. 402, Muhammad Mahmud: Ali v. Kalyan Das, l.L.R. 18 All. 189, Balkrishna v. Rangnath, I.L.R. !950 Nag. 618 and Ram Prasad v. Bishambhar Singh, L.I.R. 1946 All. 400, approved. Ci:vIL APPELLATE JURISDICTION : Review Petition No. 26 of 1962 .. Petition for Review of this Court's Judgment and order dat,ed May 4, 1962, in C. A. No. 533 of 1960; N. 0. Chatterjee, Ud'aya Pratap Singh, Anil Kumar, R.K, Garg, D. P. Singh, S.0. Aggarwal and M.K. Ramamurthi, for the petitioners. B.K. Saran, S. K. Mehta and K. L. Mehta for the respondents. 1962. December 10. The judgment of the Court was delivered by 196f/ Prithi J'lailcSingh v. Suraj Ahir RA.GHUBAR DAYAL, J.-We allowed Civil Ap- Raghubar Dayal J, peal No. 533 of 1960 on May 4, 1962, by our judgment ~ealing with the facts of the case and giving the reasons f Jr the opinion expressed. It is not neces- . sary to repeat them. ---t · Suffice it to say that the appeal was allowed on the ground thfLt the reBpondents had lost their 111# .l!riJJIJ Jf•lh Singh •• au ... ; ..Wr -- 304 SUPREME COURT REPORTS [1963] right to recover possession from the appellants on their estate vesting in the State of Bihar by virtue of ss. 3 and 4 of the Bihar Land Heforms
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