Harbans Lal, J - (1.) THIS is a regular second appeal against the judgment and decree of the Additional District Judge, Ambala, dismissing the appeal of the Defendant -Appellant which had been tiled against the preliminary decree passed by the Subordinate Judge, First Class, Jagadhari, by means of which the suit of the Plaintiff -Respondent Kanwar Lal, for redemption of one -third share of the land and one -third share of Kothi, erected on the said land, for possession by way of redemption had been decreed on payment of Rs. 6, 60/.
(2.) THE facts, in brief, are as under. Land measuring 59 bighas 16 biswas, the details of which are mentioned in the heading of the plaint, was owned by one Didar Singh, who mortgaged the same in favour of Baldev Dass and Lachaman Dass by means of a registered mortgage deed dated December (sic) 1878 (Exhibit P. 11), for Rs. 4,990/ -. As a result of a private partition between the two mortgagees in the year 1886, the mortgagee rights in the said land fell to the share of one of them, that is. Baldev Dass. This is evidenced by mutation dated June 22, 1887 (Exhibit P. 25). These mortgagee rights devolved on Dwarka Dass and Paras Ram, sons of Baldev Dass after the latter's death. One Banarsi Dass obtained a money decree and got these mortgagee rights attached and sold through Court -auction and the same were purchased by Lachhman Singh, the father of the Plaintiff Respondent Kanwar Lal Amol Singh on December 20, 1919. A copy of the warrant of possession issued in favour of the Plaintiff's father is Exhibit P. 3 and a copy of the Dakhal Nama evidencing the delivery of possession to him is Exhibit P. 5 and mutation No. 87. Exhibit P. 19, in respect of the same was attested on December 26, 1919. Mussammat Pisto, widow of Prabhu Dayal, the predeceased son of Paras Ram, one of the mortgagees, submitted an application under Order XXI Rule 100, Code of Civil Procedure (hereinafter to be referred to as the Code), in the year 1920, with the prayer that she was owner of one -third share of the land (which is the land in dispute), that she was not a party to the decree in respect of which the entire land including the land in dispute, had been sold and that she was entitled to the restoration of the said land. This application was allowed on October 18, 1920 and the order to this effect was passed a copy of which is Exhibit P. 45 In pursuance of this order, possession of one -third share of the land, that is the land in dispute, was delivered to her on October 18, 1920 and mutation No. 371 in respect of the same was sanctioned April 30, 1925, and a copy of the same is Annexure P. 17. Lachhman Singh, father of the present Plaintiff -Respondent Kanwar Lal, died in the year 1921 and his rights in the land including the land, in dispute, devolved upon him and his brother regarding which mutation, Exhibit P 21 was sanctioned. On May 31, 1946, the Plaintiff purchased the equity of redemption in the entire land including the land, in dispute from, Shiv Narain Singh son of the original owner Didar Singh by means of a sale deed for Rs. 4,500/ -. Consequently, the mortgagee rights merged with the equity of redemption so far as two third share of the land was concerned and with regard to one -third share of the land, that is, the land in dispute, the Plaintiff claimed the equity of redemption. The present Appellant, Gita Ram, is admittedly the predecessor -in interest of Mussammat Pisto. The present suit was filed by the Plaintiff -Respondent, Kanwar Lal Amal Singh for possession of the one -third share of the land and the Kothi constructed thereon, by redemption, without payment of any amount, on the ground that the mortgagees had enjoyed profits and usufruct from the property in excess of the amount that was due to them under the mortgage and that under Section 30 of the Punjab Relief of Indebtedness Act, 1934 he was not liable to pay any amount. This suit was contested by the present Appellant. Inter alia it was contended that Mussammat Pisto from whom he got the land, in dispute, was in possession of the same as owner and, therefore, there was no question of redemption and that the suit was time barred. It was also pleaded that according to the terms of the mortgage deed he was entitled to interest at the rate of two per cent and after deducting the annual amount of Rs. 198/ - in lieu of profit, was entitled to interest at the rate of Rs. 1,000/ - per year, in the alternative. A number of other ples(sic) were also raised which are not very relevant for the purpose of the decision of this appeal. On the pleadings of the parties the following issues were framed ? 1. Whether Shiv Narain Singh was the successor of Didar Singh and he sold the land, in favour of the Plaintiff, as alleged in in para (paragraph?) 19 of the plaint ? 2. Whether the Plaintiff is the owner of 2/3rd share of the mortgage rights? 3. Whether the Plaintiff is entitled to get remaining 1/3rd share redeemed ? If so, on payment of what amount ? 4. WHETHER the Defendants received profits from the land in suit ? It so, to what amount and to what effect ? 5.WHETHER the suit for redemption is within limitation ? Whether the Plaintiff is the mortgager of the Kothi or has the equity of redemption along with the land ? 6.WHETHER the value for purposes of Court fee and jurisdiction is correctly fixed ? If not what is the correct value ? 7.WHETHER the Defendants are entitled to get interest more than 71/2 per cent. If so, to what rate and what amount ? Whether Mussammat Pisto became owner of one -third share which she got from the Plaintiff as alleged ? 8.WHETHER the parties divided the land and Kothi as alleged in para (paragraph?) 12 of the written statement of Shri Gita Ram ? If so, to what effect and what were the shares ? 9.WHETHER the present suit is res judicata as alleged in para (paragraph?) 14 of the written statement ? Whether Kothi was sold in auction sale as alleged in para (paragraph?) 1(sic) of the plaint and what rights were acquired by Lachhman Singh in it ? 10.WHETHER the land in suit fell to the share of Baldev Dass as alleged in para (paragraph?) 5 of the plaint ? 11.WHETHER Paras Ram and Dawarka Das mortgaged their mortgagee rights with Jahangiri Mal as alleged in para (paragraph?) 6 of the plaint ? Whether Lachhman Dass became the successor -in -interest of Jahangiri Mal ? If so, to what effect and with what rights ? 12.WHETHER Shrimati Pisto got here mortgagee rights by suit as alleged in para (paragraph?) 12 of the plaint. It so, to what effect ? 13.WHETHER the Defendant and Shrimati Pisto partitioned the land as alleged in para (paragraph?) 13 of the plaint ? What are the shares of the Defendants and to what amount they are entitled inter se ? 14.WHETHER the burden of the mortgage of Padam Parkash and Lachhman Dass is on the share of the Plaintiff as alleged in para (paragraph?) 21 of the written statement ? 15.WHAT is the effect of purchase of land by Jagmal as alleged in para (paragraph?) 23 of the plaint ? Whether the principles of Section 30 of the Punjab Relief of Indebtedness Act apply as alleged in para (paragraph?) 2(sic) of the plaint ? 16.WHETHER the Defendants are liable to give account to the Plaintiff of the profits realised by them ? (objected to) 17.RELIEF . The suit was decreed by the trial Court and a preliminary decree was passed. It was held that the original mortgage of the entire amount was for Rs. 4, 990/ - and thus the one -third of the same in respect of the one third share of the land, that is the land in dispute, came to Rs. 1.663.33. It was also held that Section 30 of the Punjab Relief of Indebtedness Act was applicable and that the Defendant mortgagee was entitled to only twice the amount of the principle; the total being Rs. 3326 66. In addition. Rs. 3,333 34 were allowed as improvement in lieu of one -third of the construction of Kothi by mutual agreement of the parties. Thus it was decreed that the Plaintiff Respondent was entitled to redeem the suit land including the Kothi on payment of Rs. 6,63/ - only. Against this judgment and decree. One appeal vide Appeal No. 13 of 1963 was filed by the Plaintiff. Another appeal was filed by the present Appellant vide Appeal No. 20 of 1963. Both the appeals were decided by one judgment of the learned Additional District Judge, Ambala, vide his judgment dated February 6, 1964. The main judgment was given in Appeal No. 13 of 1963 filed by the Plaintiff -Respondent, Kanwar Lal Amal Singh and a short judgment was passed in the other appeal, that is, the appeal which had been filed by the present Appellant, Gita Ram. The Plaintiff did not file any appeal. However, the present regular second appeal has been tiled by the Defendant -mortgagee.
(3.) A preliminary objection has been raised that the appeal is time -barred Relevant facts, in this regard, are that both the appeals by the learned Additional District Judge, Ambala were decided on February 6, 1954. Application for certified copy of the main judgment (on Appeal No. 13 of 1963) was filed on February 7, 1964(sic). The certified copy was ready on March 23, 1964 and the same was despatched to the Appellant on March 23, 194(sic). The present appeal was tiled on July 9, 1964. The Appellant filed another application for a certified copy of the judgment and decree in his appeal on June 2, 1964, which was delivered on June 12, 194(sic). According to Mr. Anand Swaroop, the Learned Counsel for the Appellant, it was necessary to obtain a certified copy of the main judgment as well as the short judgment and decree for the purpose of filing the present appeal. Thus, according to him, the Appellant is entitled to the exclusion of the period spent in obtaining the copy of the judgment of the appeal filed by the Plaintiff from February 7, 1964 to March 23, 1964, that is forty -five days. The present appeal was filed on July 9, 1964 when the High Court was closed for Summer Vacation. this Court was closed from June 1, 1964 to July 10, 1964. Under the circumstances, it is contended the present appeal is within time and that the Appellant was fully justified in applying for a certified copy of the short judgment and decree in his own appeal in the Court of the Additional District Judge within the extended period of limitation. For this purpose, reliance has been placed on Batan Singh v. Nathu Birju : A. I. R. 1961 P&H. 503. There is a great substance in this contention and the Appellant is entitled to the exclusion of the time spent in obtaining copy of the main judgment in the other appeal before the Additional District Judge, Ambala, as the same was necessary for the purpose of filing the present appeal. The Learned Counsel for the Respondent No. 1 has not been able to rebut this contention. Therefore, this appeal is held to be within time and as such, the question of condoning the delay under Section 5 of the Limitation Act does not arise and Civil Miscellaneous Application No. 1639 of 1964, is dismissed an infructuous.;