ADARSH KUMAR GOEL, J. - (1.) Following substantial questions of law are involved in this appeal :- (i) Whether mortgagee was entitled to a decree of declaration that he had become owner and was entitled to possession on the around that right of redemption had come to an end by efflux of time. (ii) Whether the terms of mortgage permitting interest at rate equal to income from the land on a part of the principal amount and interest at the rate of Re. 1 and 9 annas % per month on rest of the amount were hit by provisions of Usurious Loans Act, 1918, and Punjab Relief of Indebtedness Act, 1934, and further whether such provisions were in the nature of clog on equity of redemption and on that account were liable to be modified : (iii) Whether the Court could require, in its discretion that the procedure for foreclosure may be followed before the declaration of title in favour of a mortgagee can be granted if it appears the Court to be necessary to do so having regard to the facts of the case.
(2.) The respondents-defendants mortgaged the suit land against an amount of Rs. 920.00 on 26-10-1899 (mortgage, deed Exhibit P-1). Under the terms of the mortgage, the defendants respondents were to exercise their right of redemption within 4 years, failing which mortgage was to be treated as sale. Interest on a sum of of Rs. 420.00 was to be equal to the income from the land and interest on remaining amount of Rs. 500.00 was to be Re. 1 and 9 annas % per month. The appellant-plaintiff continued in possession from 26-10-1899 to 15-6-1962 when the respondents-defendants took possession.
(3.) On 30-1-1974, the appellant-plaintiff filed a suit for declaration that on failure of the respondents-defendants to pay the mortgage money and to redeem the suit land, his right to redeem was extinguished and the appellant-plaintiff had become owner. There was a decree in favour of the the appellant-plaintiff but the matter was remanded by the appellate Court and on 1-11-1977, the appellant-plaintiff was permitted to amend the plaint to claim the relief of possession, as it was found that the the appellant-plaintiff had been dispossessed on 15-6-1962. On 20-3-1978, the trial Court decreed the suit. The appellate Court set aside the decree and dismissed the suit on 6-4-1979 revessing the findings of the trial Court mainly on issues Nos. 3 and 5-A, which relate to limitation and the form of the suit. It was held that the suit was barred by limitation and the mortgagee could not sue for being declared as owner without taking foreclosure proceedings. The foreclosure proceedings provide an opportunity to the mortgagor to deposit the mortage money and the mortgagee could not, by by-passing foreclosure procedure sue for declaration of title.;