- (1.) The land, in dispute, belonged to Balour Singh defendant, who had mortgaged the same with Prem Singh and Khem Singh plaintiffs. The defendant made an application before the Collector for redemption of the mortgaged land. This application was allowed by the Collector vide order dated September 18, 1961 (Exhibit D-5) whereby he redeemed the mortgaged land on payment of Rs. 7,200/- under the provisions of Punjab Redemption of Mortgages Act, 1913. As this sum of Rs. 7,200/- had already been deposited in the treasury by the mortgagor, it was also directed by the Collector that the mortgagor be put in possession of the mortgaged land. Subsequently, the plaintiff-appellants (mortgagees) filed a declaratory suit, challenging the order of the Collector as being illegal, contrary to facts and void. The main ground in that suit was that the mortgage amount was Rs. 8,200/- and not Rs. 7,200/- and that as the whole amount of mortgage had not been paid to them, the order of the Collector redeeming the portaged land was void. In that suit, an application under Order 39 of the Code of Civil Procedure was filed by the mortgagees and the Court passed an order dated October 10, 1961 (Exhibit D-4) that the balance amount of Rs. 1,000/- be deposited by the mortgagor by October 16, 1961 and in that event the interim order dated October 3, 1961 staying dispossession of the mortgagees shall stand vacated. It is averred by the mortgagor that a sum of Rs. 1,000/- was deposited within time. Thereafter, the possession of the land, in dispute, was taken over by the mortgagor on December 4, 1961 in execution of the order of the Collector. Ultimately, this suit was decreed by the Court vide judgment dated October 1, 1962 (Exhibit P.1) and it was held as under :- "From my finding on issue No. 1, it is proved that the mortgage amount is Rs. 7,560/- but the learned Collector has ordered the redemption on payment of Rs. 7,200/- only, so the order of the learned Collector dated September 18, 1961 is illegal and void." On the basis of this decree, Prem Singh and Khem Singh, plaintiff-appellants (mortgagees) brought the present suit for possession of the land in dispute. Their claim was resisted by the defendant-respondent (mortgagor) and it was averred in the written statement by him that the mortgager amount was not Rs. 8,200/- but Rs. 7,560/- as held by the Civil Court; that the mortgagor had already deposited Rs. 7,200/- with the Collector for payment to the mortgagees and an additional sum of Rs. 1,000/- in the previous suit which he had not withdrawn so far; and that the balance amount of Rs. 360/- could be paid to the mortgagees out of the said sum of Rs. 1,000/- by the Court. The parties went to trial on the following issues :- 1. Whether the plaintiffs are entitled to a decree for possession as claimed ? 2. What is the effect of the previous litigation between the parties ? 3. Whether the suit is not maintainable in the present form ? 4. Whether the defendant deposited Rs. 1,000/- in the course of the previous suit ? If so, to what effect ? 5. Relief.
(2.) The trial Court decided issue Nos. 1, 2 and 3 against the plaintiff-mortgagees and issue No. 4 in favour of the defendant-mortgagor and dismissed the plaintiff-mortgagees' suit. Dissatisfied by the judgment and decree of the trial Court, the plaintiff-mortgagees filed an appeal before the learned Additional District Judge, who affirmed the finding of the trial Court on all the issues and dismissed the appeal. However, it was directed that the plaintiff-mortgagees were entitled to withdraw a sum of Rs. 360/- from the Civil Court out of the sum of Rs. 1,000/- deposited by the defendant-mortgagor and the balance sum of Rs. 640/- be paid back to the defendant-mortgagor. Still dissatisfied, the plaintiff-mortgagees filed this second appeal.
(3.) Mr. G.R. Majithia, learned counsel for the appellants, urges that the Courts below have erred in not decreeing the suit of the appellants. He has placed reliance on a Division Bench Judgment of the Lahore High Court in Nizam Din and another v. Daulat Ram and another,1921 AIR(Lah) 132 This authority is of no avail to the appellants. Rather this authority advances the case of the respondent. In this authority, the land was redeemed by the Collector and the order was passed in favour of the mortgagors that they will get possession on payment of Rs. 1,063-0-6. Possession had accordingly passed. The plaintiff-mortgagees thereupon instituted the suit for restoration of possession on the ground that larger sum was due to them. This plea was upheld by the trial Court and decree was passed that the plaintiffs were entitled to retain possession until they were given the full amount and in that situation the appeal filed by the mortgagors was dismissed by the first appellate Court and also by the High Court. This authority only lays down that till the whole amount is not paid, the mortgagee has a right to retain the possession. In this present case, the excess amount is already deposited in the Civil Court and the mortgagees are at liberty to draw the same. In fact, it is directed by the lower appellate Court that excess amount of Rs. 360/- should be paid to the mortgagees and the rest of the deposit of Rs. 1,000/- be returned to the mortgagors. The contest in the earlier case between the parties was that the amount was still due to the mortgagees and the Civil Court held that the mortgage amount was Rs. 7,560/- and as the balance was still due and to that extent it was held by the Court that the Collector's order of redemption was illegal and void. It is pertinent to reproduce Section 12 of the Punjab Redemption of Mortgages Act, 1913, which is in the following terms :- "Any party aggrieved by an order made under Sections 6, 7, 8, 9, 10 or 11 of this Act may institute a 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. Notwithstanding anything in this section a mortgagee against whom an ex parte order under Section 7 has been made or a petitioner whose petition has been dismissed in default under Section 6 may apply to the Collector to have such order of dismissal set aside, and the Collector may in his discretion set aside such order or dismissal on such terms as to costs or otherwise as he may deem fit; provided that the order or dismissal shall not be set aside unless notice of the application has been served on the opposite party." This shows that the mortgagee who is dispossessed by the Collector can institute a suit to establish his right in respect of the mortgage and subject to the result of the suit, the order shall be conclusive. The previous suit was merely for a declaration and not for possession - the declaration sought was only to the effect that the mortgage amount in fact was Rs. 7,560/- and not Rs. 7,200/-. To that extent the mortgagor is prepared to make up the deficiency and in fact he deposited the amount in the Civil Court far excess than what is due to the mortgagees. I fail to understand how the second suit for possession lies. It was open to the mortgagees to claim possession also. The earlier suit was merely a declaratory suit and no possession was claimed. Only one suit is competent and, therefore, I have no hesitation to hold that the second suit for possession does not lie.;