Kapur, J. - (1.) THIS is a Plaintiff's appeal against a judgment and decree of Mr. Sansar Chand, Senior Subordinate Judge, Hoshiarpur, affirming a decree of the trial Court wherein it had been held that the Punjab Restitution of Mortgaged Lands Act, IV of 1938 applied to the present suit.
(2.) THE ancestors of the Defendants effected a mortgage of the land in dispute on the 12th of November, 1879. On the 31st of July, 1945, the Defendants made an application for restitution under Section 4 of the Punjab Restitution of Mortgaged Lands Act hereinafter termed 'the Punjab Act', which was allowed on the 13th of March, 1946, and possession was taken thereafter. On the 7th of June, 1946, the Plaintiff applied for possession of the land in dispute on the ground that the mortgage had ceased to exist because of the lapse of 60 years under Article 148 of the Indian Limitation Act. Both the Courts dismissed the suit holding that if a mortgage was subsisting on the date when the Punjab Act came into force, then in that case the application could be made at any time subsequently. The preamble of the Punjab Act is as follows: An Act to provide for the restitution of land on which a mortgage subsists, which was effected prior to 8th June, 1901. The Act came into force on the 15th of May, 1939. Section - 2 provides for the application of the Act to subsisting mortgages and it runs as follows: 2. Notwithstanding anything contained in any enactment for the time being in force, this Act shall apply to any subsisting mortgages of land, which were effected prior to 8th June, 1901. Section 4 provides for petitions for restitution and run is as follows: 3.A mortgagor to whose land the provisions of this Act apply, may at any time present a petition (sic) the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions.
(3.) Mr. D.N. Aggarwal submits that all that Section 2 provides is that if a mortgage was submitting on the date when the Punjab Act came into force, then an application could be made under Section 4 of that Act. But that does not mean that if in the period intervening after the coming into force of the Punjab Act, the redemption of a mortgage becomes barred by time under Article 148 and is affected by Section 28 of the Indian Limitation Act even then an application can be made under Section 4. In a judgment of this Court in Chushia v. Gurditta, 51 P.L.R. 364, where it had been found that the mortgage was effected in 1879, was held that after the lapse of 60 years from the date of the mortgage no restitution could be owed and the Act would not apply because the mortgage itself would cease to exist. Achhru Ram, at p. 386 observed as follows: In each case when the question is raised whether the application for restitution of the land has been made in respect of land covered by a mortgage which is still subsisting and the right to redeem which mortgage has not become extinguished by person of the expiry of limitation, the material (sic)e will be that on which action is taken for the purpose of getting restitution of the land. It (sic)d not be the intention of the legislature that the mortgage was less than sixty years old at (sic) time the Act was passed the mortgagor could (sic)any length of time that he likes before seek -(sic)to avail himself of the provisions of the Act (sic) even though at the time he makes an application for the restitution of the land he is unable to maintain suit for redemption of the mortgage by persons of the expiry of limitation, he can be (sic)nted an order under the Act.;