- (1.) The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for redemption of mortgage dated 9.6.1951 in respect of the land measuring 16 bighas 19 biswas, was allowed by the Courts below.
(2.) One Raghbir Singh mortgaged the land measuring 78 bighas 17 biswas on 9.6.1951 in favour of Ghansham and Sheodan vide registered mortgage deed for a consideration of Rs.4,000/-. The terms and conditions of the mortgage include that the mortgagor could exercise its right of redemption in part in as much as he could redeem part of the land from the mortgagees severally. Raghbir Singh mortgagor sold the land measuring 16 bighas 19 biswas out of the mortgaged land along with some other land to the plaintiff Nos.1 to 8 and one Ajmer Singh father of plaintiff Nos.9 to 12, in the sum of Rs.40,000/- through a registered sale deed dated 2.7.1969. The plaintiffs sought redemption of the land purchased by them on payment of proportionate mortgage amount of Rs.861.56 paise. The said suit has been decreed by both the Courts below relying upon the terms and conditions in the mortgage deed to the effect that the land can be redeemed in part as well. The learned First Appellate Court has relied upon the judgment of this Court reported as Gurditta Singh and another v. Harbans Singh, 1974 PunLJ 325, to hold that non filing of the suit under Section 12 of the Redemption of Mortgage (Punjab) Act, 1913 within one year of passing the order by the Collector, is not fatal to the maintainability of the suit for redemption under the common/general law.
(3.) Learned counsel for the appellants has raised two fold arguments before this Court. Firstly, that earlier the plaintiffs have sought redemption by filing an application under the Redemption of Mortgage (Punjab) Act, 1913. The said application was dismissed by the Collector on 8.10.1970, whereas the suit of redemption was filed on 24.11.1978. It is contended that the limitation to challenge the order passed by the Collector is one year under Article 100 of the Limitation Act, 1963. Therefore, the suit filed in the year 1978 is beyond the period of limitation. Secondly, the learned counsel for the appellants argued that in the sale deed dated 2.7.1969, the vendor has not disclosed the factum of mortgage and therefore, the vendee cannot seek redemption of the land mortgaged prior to sale in favour of the plaintiffs.;