- (1.) Padmawati, defendant, has filed this petition under Section 115 of the Code of Civil Procedure, against the order of the learned Subordinate Judge Ist Class, Sultanpur Lodhi, dated 26th October, 1972, by which preliminary issue, "Whether the suit is within limitation ?" was decided in favour of the plaintiffs and against the defendant.
(2.) The only contention raised before me by Mr. Mittal, learned counsel for the petitioner, is that the learned Subordinate Judge exercised jurisdiction with material irregularity and illegality in deciding the question of limitation, as a preliminary issue. According to the learned counsel, even if the suit was filed within one year of the date of the order passed under Section 12 of the Punjab Redemption of Mortgages Act (hereinafter referred to as the Act), still it had to be determined whether the suit for possession by way of redemption was within limitation. In support of this contention, he has placed reliance on a decision of the Supreme Court in Shiv Lal and others v. Chet Ram and others, 1971 AIR(SC) 2342 .
(3.) After hearing the learned counsel for the parties, I am of the view that there is considerable force in the contention of the learned counsel for the petitioner. The trial Court fell in patent error in deciding the question of limitation in this manner. Even if the suit was filed within one year of the order that was passed under Section 12 of the Act, still it had to be found out after permitting the parties to lead evidence, if the mortgage of which redemption is sought, was created within 60 years of the date of the filing of the suit. The proceedings which were taken under Section 12 of the Act, would not enlarge the period of limitation. It had independently to be found out if on the date when the application under Section 12 of the Act was filed, the mortgage was still subsisting or not. It was also to be found out if on the date the suit was filed, whether the right to redeem could be exercised and was not barred by limitation. Merely this fact that the suit was filed within one year of the date of the order passed under Section 12 of the Act, would not make the suit to be within limitation, ipso facto. The following observations of their Lordships of the Supreme Court, in Shiv Lal's case, may be read with advantage :- "But the real question is whether Section 12 enlarges the period of limitation for a redemption suit. That section to the extent material for our present purpose reads as follows :- "Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 and 11 of this Act may institute suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive." "This section merely provides that a summary order made under Sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 becomes final unless a suit to establish the rights of the mortgagors is instituted within the prescribed period. From this provision we are unable to hold that in view of that section, the period of limitation fixed for redemption of mortgages can be enlarged. Several decisions of the Lahore High Court holding that if a suit as required by Section 12 is not filed within the time prescribed then the right of redemption will be lost even if the time prescribed under the Limitation Act for instituting a suit for redemption has not expired. It is not necessary to go into the correctness of these decisions though prima facie we are inclined to accept their correctness because they merely lay down that if any party aggrieved by an order under Sections 6, 7, 8, 9, 10 and 11 of the Redemption of Mortgages (Punjab) Act, 1913 does not institute a suit to establish his rights in respect of the mortgage within the time prescribed, his right to sue for redemption is lost. Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under Section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under Section 4. No decision taking that view was brought to our notice. What is made conclusive by Section 12 is the order made by the Collector if the suit was contemplated by Section 12 is not instituted within the prescribed time. That provision does not lend any support for the contention that if an application which fulfils the requirements of Section 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant." In this view of the matter, the impugned order of the learned Subordinate Judge cannot legally be sustained. Consequently, I allow this petition, set aside the order of the learned Subordinate Judge, and send back the case to him for deciding the question of limitation in accordance with the observations made above. The parties through their learned counsel have been directed to appear before the learned Subordinate Judge on 15th April, 1974. In the circumstances of the case I make no order as to costs.;