S.P. Goyal, J. - (1.) JIWAN Singh, the predecessor -in -interest of Respondents No. 1 to 10 mortgaged the land in dispute through a registered deed dated July 20, 1925 with Ishar Singh for a sum of Rs. 1800/ -. Another charge in the like amount on the same land was created in favour of the same mortgagee on July 15, 1927. He also executed two unregistered mortgage deeds dated February 2, 1931 in favour of the mortgagees each for Rs 99/15/ -. Some of the land was later on got redeemed vide Mutation No. 3316 on November 8, 1945. For redemption of the remaining land his sons, Ujjagar Singh and Puran Singh, filed the present suit. The redemption was claimed without any payment as it was alleged that the mortgagee has already realized more than Rs. 30,000/ - from the produce of the land under mortgage
(2.) THE successors in -interest of the mortgagee contested the suit and controverted all the material allegations. They also raised several legal pleas such as that the suit was barred by the provisions of Section 11, Order 2, Rule 2, Code of Civil Procedure and the provisions of the Redemption of Mortgages (Punjab) Act, 1913 (for short, called the Act). The suit was also stated to be barred by limitation. The trial Court on merits held that the land was liable to be redeemed on payment of Rs. 1650/ - but dismissed the suit as barred by the provisions of Order 2, Rule 2, Code of Civil Procedure. The latter finding of the trial Court was, however, reversed on appeal by the learned Additional District Judge and redemption ordered on payment of Rs - 1650/ -. Hence this appeal by the mortgagee -defendants. For resolving the dispute on legal pleas some of the facts which are undisputed have to be stated first Jiwan Singh, mortgagor, filed a suit for redemption on July 29, 1959 and the same was dismissed in default on June 20, 1960 vide order, Exhibit D 8. Thereafter, on July 8, 1966, Fauja Singh with whom the land in dispute was mortgaged by the sons of Jiwan Singh on January 14, 1965 moved an application under Section 4 of the Act but it was also dismissed by the Assistant Collector 1st Grade, Gurdaspur, by his order dated April 2S, 1967, Exhibit D -7, in view of the order, Exhibit D -8, whereby suit for redemption was dismissed in default. However, it was observed in the order that the Petitioners were at liberty to seek a remedy in a civil Court, if so advised. A declaratory suit was filed to challenge this order but was dismissed vide judgment dated January 15, 1969 as not maintainable because of the non -claiming of the relief of possession The present suit was filed then on March 15, 1969 for possession by way of redemption of the land in dispute.
(3.) THE first contention raised to assail the correctness of the impugned judgment was that the order of the Collector dated April 28,1967, Exhibit D -7, was an order under Section 10 of the Act and if no suit is filed to challenge it under Section 12, the remedy of a suit under the general law would be barred In the present case, the suit had, in fact, been filed but was dismissed on March 15, 1969 as not maintainable being only a declaratory suit. The order of the Collector thus became final and a fresh suit was accordingly barred. The lower Appellate Court rejected this contention relying on a Division Bench decision of this Court in Gurdita Singh and Ors. v. Harbans Singh : (1974) 76 P.L.R. 418, but the same has since been overruled by the Full Bench in Chaman Singh v. Smt. Majo, (1976) 72 P.L.R. 726. The argument of the Learned Counsel could have some merit if the order of the Assistant Collector was one falling under Section 10. However, as urged by the Learned Counsel for the Respondents that order cannot be said to be one under Section 10 of the Act and in fact the Collector never pronounced on any matter covered by the provisions of the Act. The order falls under Section 10 if on enquiry regarding any objection on any ground other than the amount of the deposit raised by the mortgagee, the Collector is of the opinion that it bars redemption or there is sufficient cause for not proceeding further with the petition and dismissed it. In the present case after observing that the suit filed by the mortgagor had been dismissed for default, the Collector dismissed the application leaving him at liberty to seek remedy in the civil court. The Collector thus never was of the opinion either that the redemption was barred or that there was sufficient cause for not proceeding further with the petition. He simply dismissed the petition being of the view that the remedy of a civil suit was only the proper remedy as the mortgagor had earlier resorted to such remedy. Such an order in my view would not be covered by Section 10 of the Act. I am fully fortified in my view by the Full Bench decision in Tulsi Dass alias Nirmal Dus and Ors. v. Diala Ram : A.I.R. 1943 Lah. 176, wherein the following observations made in the earlier Division Bench decision in Asa Ram v. Darba Mai, A.I.R. 1928 Lah. 513, were approved: ** ** ** held that as the Collector had carefully refrained from coming to any decision on the merits of the dispute between the parties and stayed his hands remarking that the mortgagor must sue in a civil Court, it was not necessary for the mortgagor to bring a suit under Section 12 within one year from the date of dismissal but that he could bring a regular suit for redemption in the civil Court within the usual period of limitation prescribed for such a suit. The rule laid down by the Full Bench in Tutsi Dass's case (supra) was approved by the Supreme Court in Sheolal v. Sultan5, in the following terms: Where the Assistant Collector did not pass the order under the Act dismissing the petition under the Act for redemption of the mortgage for any reason recorded by him but merely ordered that the case raised complicated questions of fact and a law which could not be tried in a summary proceeding such an order does not fall within the terms of Section 9 of Act No. 2 of 1913. Even if by the order the petition was dismissed, not the form of the order, but its substance will determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. An order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption for it raises no cloud on the title of the mortgagor arising out of the mortgage. Such an order is not one which is required to be set aside. An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside. The order of the Assistant Collector merely declared the rights of the Plaintiff under the common law; it did not bar the claim to relief for redemption in civil suit, and on that account it was not an order which was required to be set aside." As already observed above, in the present case also the Assistant Collector did not dismiss the petition for redemption for any reasons recorded by him but merely relegated the mortgagor to his ordinary remedy of the civil suit. His order therefore, would not be covered by the provisions of Section 10 and as such the mortgagor was under no obligation to challenge it by way of a suit under Section 12. The matter can be looked from another angle also. The mortgagor would be obliged to file a suit if he is to establish some right which has been, denied to him by the Collector. If the Collector has simply refused to proceed with the application without pronouncing on any right of the mortgagor there i3 no need for him to get such an order set aside and so need not file a suit under Section 12. When the order of the Collector is accepted and a suit is held under the general law for redemption, the suit would not be haired by Section 12 of the Act. A reference in this connection maybe made to a Division Bench Authority of this Court in Dewan Chand v. Raghbir Singh, (1965) 67 P.L.R. 969, where -in the following observations of Beckett J. in Tuhi Doss's case (supra) (Full Bench) were relied upon for holding that such a suit was not governed by Article 14 of the Limitation Act: **** 1 think that these make it sufficiently clear that the question and the answer were both directed to these suits under Section 12 in which it is being sought to establish that the order of the Collector is erroneous and not to suits in which the order of the Collector is being accepted without further question" and a little later. *** applicability of Article 14 to suits which are brought in consequence of such an order is entirely dependent on the question whether the suit is in substance to jet aside some decision of the Collector on which an order granting or rejecting a summary remedy is based. Consequently, even if it may be assumed for argument's sake that the order of the Collector was the one under Section 10 still the mortgagor was under no obligation to challenge it by way of a suit as it cast no cloud on his rights and his remedy of a suit for redemption under the general law would not be barred.;