M.M.KUMAR, J. - (1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the code') challenging the judgment and decree dated 19.1.1983 passed by the learned District Judge, Amritsar reversing the findings recorded by the Senior Sub-Judge, Amritsar in his judgment and decree dated 26.3.1982.
(2.) BRIEF facts of the case are that defendant-respondent 1 filed an application before the Collector, Amritsar under Section 4 of the Punjab Redemption of Mortgages Act, 1913 (for brevity, 'the Act') for redeeming the land mortgaged vide mortgage deed dated 10.10.1946 (Ex. D1). The Collector dismissed the application on 27.6.1969. The order passed by the Collector was challenged by filing a suit in accordance with his rights conferred by Section 12 of the Act. The suit of defendant-respondent 1 Jarnail Singh was partially decreed and in the appeal, the cross-objections filed by defendant-respondent 1 were allowed by Additional District Judge, Amritsar in his judgment and decree dated 1.5.1975. The operative part of the order dated 1.5.1975 reads as under :- "In view of the aforesaid discussion, the appeal of the appellants fails and the cross-objection filed by the respondent Jarnail Singh are accepted. I, therefore, modify the decree of the trial court and grant a declaration to the plaintiff that he is entitled to get the land redeemed that may be proved to have been allotted in lieu of the land contained in Ex.DC mortgage deed on payment of Rs. 12,200/- and I also declare that the order of the Collector dated 27.6.1969 is illegal, and void and set the same aside....." (emphasis added) Thereafter, on 10.6.1975 the defendant-respondents filed an application before the Collector, Amritsar praying for delivery of possession of the mortgaged land. The Collector, Amritsar vide his order dated 27.2.1980 came to the conclusion that the application was liable to succeed and passed the following order :- "I have weighed the arguments of the learned counsels. The applicant had moved an application for redemption which was dismissed by the then Collector on 27.6.69. Consequently, the applicant had filed a civil suit which was decreed in his favour by Sh. Pyare Lall, Sub Judge Ist Class, Amritsar on 2.11.1973, which was also upheld by Shri T.S. Cheema, Addl. District Judge, Amritsar vide his order dated 1.5.75. The applicant then moved an application for the delivery of possession on 10.6.75 in this court. In view of the facts and the circumstances of the case and rule 10 of the Punjab Tenancy Rules framed under section 85 of the Punjab Tenancy Act and ruling 1978 PLJ Page 329 para 6 which authorise this court to deliver the possession after the decision of the civil court, I hereby order that the possession of the suit land be delivered to the applicant on payment of Rs. 12,200/- to the respondent. The applicant has been directed to deposit the sum of Rs. 12,200/- into the Treasury within a period of two months. This amount shall be paid to the mortgagee after delivery of the possession to the applicant." (emphasis added)
(3.) THE plaintiff-appellant filed Civil Suit No. 130 of 1980 on 26.4.1980 challenging the aforementioned order dated 22.2.1980 passed by the Collector claiming the same to be illegal, void and without jurisdiction. A further prayer was also made seeking permanent injunction restraining the defendant- respondents from enforcing the order dated 27.2.1980 by executing the same in the Court of the Collector and dispossessing the plaintiff-appellant. The trial Court decreed the suit on 26.31982 by holding that the plaintiff- appellant was entitled for a declaration to the effect that the order dated 27.2.1980 passed by the Collector, Amritsar was illegal, void and without jurisdiction and defendant-respondents 1 and 2 were not entitled to take possession from the plaintiff-appellant and defendant-respondents 3 to 11. A decree for permanent injunction was also passed in favour of the plaintiff- appellant restraining defendants-respondents 1 and 2 from dispossessing the plaintiff-appellant and defendant-respondents 3 to 11 from the suit land. However, the lower appellate Court on appeal filed by defendant-respondent 1 set aside those findings by holding that once the judgment and decree has been passed by the Additional District Judge on 1.5.1975, then the right of defendant-respondent 1 to redeem the land stood crystalized and order of the Collector to deliver possession of the suit land on payment of Rs. 12,200/- was absolutely in order. The operative part of the order passed by the learned lower appellate Court reads as under :- "The undisputed facts are that Sadhu Singh son of Mehar Singh, defendant- appellant mortgaged the agricultural land measuring 62 kanals 18 marlas to Sadhu Singh son of Shian Singh vide mortgage deed dated October 10, 1946 for Rs. 12,200/- (Copy Ex.D.1). It is not disputed that the land in suit represents the land mortgaged subsequent to the consolidation and to the similar effect was the finding of Sh. T.S. Chima, learned Addl. District Judge, Amritsar affirming the findings of the trial Court on issue No. 3(c) in that case. The application of Jarnail Singh for redemption of the land was dismissed by the Collector which order was however, upset by Shri T.S. Chima, learned Addl. District Judge, Amritsar, in appeal against the decree of Shri P. Lal, Subordinate Judge Ist Class, Amritsar, in a suit under section 12 of the Redemption of Mortgages Act. Shri T.S. Chima, Addl. District Judge, Amritsar, by his judgment Ex.P.3 held that Jarnail Singh, defendant-appellant was entiteld to get the land redeemed and the order of the Collector dated June 27, 1969 was held to be illegal. It was, thereafter, that Jarnial Singh moved an application Ex.D.11 before S.D.O. (Civil), Amritsar to get possession on deposit of Rs. 12,200/-. Shri H.S. Pawar, S.D.O. (Civil) Amritsar, therefore, directed the delivery of possession on deposit of Rs. 12,200/-. The decree passed by Shri T.S. Chima, Addl, District Judge, Amritsar, is final between the parties. The suit under section 12 of the Redemption of Mortgages Act is in the nature of appeal from the order of the Collector under Section 4 of the Redemption of Mortgages Act. The Collector was duty bound of direct the delivery of possession. Shri T.S. Chima, Addl. District Judge, Amritsar, judicially recognised the right of Jarnail Singh to get the land redeemed and the order of the Collector directing the delivery of possession on payment of Rs. 12,200/- was only implementing the same. It is doubtful if the suit challenging the order of the Collector lay. Setting aside the order of the Collector would mean setting aside the order passed by the appellate court. There was no such power in the trial court. I have not been able to find out any illegality in the order of the Collector whereby the possession was directed to be delivered. No suit for redemption lay much less second application for redemption. The only remedy was to get possession in the application for redemption of the mortgage which has been previously dismissed and in the order of the Addl. District Judge, Amritsar, it was held that Jarnail Singh was entitled to the possession. I hold the order to be legal and as such no suit for injunction lay." ;