Kapur, J. - (1.) This is a plaintiff's appeal against an appellate decree of the Senior Subordinate Judge, of Hissar, affirming the decree of the trial Court which dismissed the plaintiff's suit.
(2.) The defendants or their predecessors mortgaged the land in dispute for the first time on the 20th of July, 1896, and subsequently twice before the year 1901. It is alleged that there were two further mortgages effected of the property which are after the year 1901. The defendants applied to the Special Collector for restitution under the Punjab Restitution of Mortgaged Lands Act, 1938. On the 18th of February, 1937, while the proceedings were pending, the plaintiff brought a suit for declaration that the proceedings before the Special Collector were 'ultra vires' and for issue of an injunction restraining the defendants from proceeding with the same. As I have said, both the Courts below have agreed in dismissing the suit.
(3.) Before me, Mr. Salooja has submitted, firstly, that the defendants have no right of redemption left because of the decree of the year 1915, and he particularly relied on the following words of the decree: "If payment is not made within six months from date the plaintiff shall be debarred from all rights to redeem the same and the mortgaged property shall be sold unless the defendant agrees to retain possession in lieu of the amount found due." This is a wholly illegally drawn up decree. The words which have been used are no doubt there in Order XXXIV Rule 7, Civil P. C., but that only contemplates preliminary decrees. Following the judgment of Campbell, J., in 'SUNKAR v. JARU', A. I. R. 1923 Lah 680, I am of the opinion that when a preliminary decree in a redemption suit provides that if the payment is not made by a certain date the plaintiff shall forfeit his right of redemption, such a decree is illegal and the mortgage does not come to an end and a second suit can be brought for redemption as the right to redeem is not extinguished by the preliminary decree.;