RAGHUNANDAN RAI Vs. STATE

JUDGEMENT

(1.) Whether a mortgage must be a subsisting one on the date of the enforcement of the Bihar Money Lenders Act, 1974 in order to attract the provisions of statutory redemption under S.12 thereof - is the significant common question in this set of four cases referred for hearing by a Full Bench. Pointedly at issue is the correctness of the earlier Division Bench decision in Ram Rup Kuer v. State of Bihar, 1978 BBCJ (HC) 282 holding so in the affirmative.

(2.) In an issue so pristinely legal the facts inevitably recede to the background. Nevertheless the skeletal ones only may be noticed to provide the terra-firma for the aforesaid common question involved in these cases. These may be noticed from C.W.J.C. 1973/79 (Raghunandan Rai v. The State of Bihar and others). Way back on the 14th of May, 1943 the mortgage was created of a tenure right which included some bakasht land. Respondents 4 and 5 preferred an application under S.12 of the Bihar Money Lenders Act (hereinafter called the 'Act') before the Land Reforms Deputy Collector, Bettiah. On the 15th of September, 1975 notice thereof was issued to the petitioner and a detailed rejoinder was filed . The Land Reforms Deputy Collector by an exhaustive order (Annexure-4) dated the 31st of July, 1978 found the application not maintainable and dismissed the same. Aggrieved thereby the said respondents preferred an appeal to the Collector, West Champaran, who allowed the same . The challenge in the writ petition is primarily directed against the said order.

(3.) This case came up for hearing before a learned single Judge when it was pointed out that the identical point arising herein had been referred to a Full Bench in C.W.J.C. 3442 of 1979, (Badri Nath Dubey and another v. State of Bihar and others) and consequently it was directed to be heard along with the same. The order of reference in the aforesaid case noticed the earlier view in Ram Rup Kuer v. State of Bihar, 1978 BBCJ (HC) 282 and Nand Lal Thakur v. State of Bihar, 1980 BBCJ (HC) 455 holding that if on account of the lapse of time or conduct of parties the right, title and interest of the mortgagor in the property has been extinguished prior to the coming into force of the Act then the question of redemption and recovery of possession under S.12 thereof would not arise. Apparently casting some doubt on the said view, it was observed that the same needs reconsideration by a larger Bench, and the cases were referred to a Full Bench. The other connected cases have also been similarly referred on the identical issue of law, and that is how they are before us now.