RAJIV BHALLA, J. - (1.) THE appellants lay challenge to judgments and decrees, passed by the Civil Judge (Senior Division), Sirsa, dated 24.03.1999 and the Additional District Judge, Sirsa, dated 11.09.2003, decreeing the suit filed by the respondents and dismissing the appeal filed by the appellants.
(2.) THE plaintiffs-respondents filed a suit for declaration praying that as the mortgages created on 27.08.1932 and 30.12.1932 have not been redeemed, within thirty years, the plaintiffs have become owners in possession of the suit land. The defendants-appellants denied the averments in the plaint and prayed for dismissal of the suit. On the pleading of the parties, the trial court framed the following issues :- "1. Whether the plaintiffs No. 1 to 3 have become the owners in possession over the suit land as detailed and described in the head-note of the plaint ? OPP 2. Whether the suit is bad for non-joinder of necessary parties ? OPD 3. Whether the suit is bade against mandatory provisions of order 34 Rule 1 CPC ? OPD 4. Whether the suit is time barred ? OPD 5. Whether the suit is not maintainable under proviso of Section 34 of Specific Relief Act ? OPD 6. Whether the suit is liable to be dismissing with Special costs under Section 35-A of CPC ? OPD 7. Relief. After considering the dispute in its entirely, the learned trial court decreed the suit by holding that the plaintiff/respondents had become owners for failure of the defendants/appellants to redeem the mortgaged properties, within 30 years. Aggrieved by the aforementioned judgment and decree, the appellants field an appeal. The additional District Judge, Sirsa, affirmed the findings recorded by the trial court and dismissed the appeal.
(3.) COUNSEL for the parties are ad idem that as the substantial question of law that arises for consideration, namely, the period of limitation that governs the filing of an application or a suit for redemption of a usufructuary mortgage has been answered by a Full Bench of this Court in RSA No. 1029 of 1988 titled as Ram Kishan and others v. Sheo Ram and others, 2008(1) RCR(Civil) 334, decided on 12.12.2007, the present appeal will have to be decided in terms thereof. As noticed hereinabove, the learned courts below have held that as the period for redeeming the mortgage has expired, the respondents have become owners by efflux of time. The question that requires adjudication is the nature of the mortgage and the period of limitation that governs an application for redemption of a usufructuary mortgage. The period of limitation that governs the filing of an application for redemption of a usufructuary mortgage came up for consideration before a Full bench in Ram Kishan and others v. Sheo Ram and others (supra). The questions posed before the Full Bench were :- 1. Whether the right to seek redemption would arise on the date of mortgage itself in case of usufructuary mortgage when no time limit is fixed to seek redemption ? 2. Whether there is any time limit in the case of usufructuary mortgage or to get his property redeemed ? After considering the above questions in detail, the Full Beach concluded as follows :- " 34. Therefore, we answer the questions framed to hold that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable." It is therefore, apparent that in case of a usufructuary mortgage, where no time limit is fixed for redemption, the right to seek redemption accrues from the date the mortgagor pays or tenders to the mortgagee or deposit in the court, the mortgage money or the balance thereof and not from the date of the mortgage. As the questions of law, framed have already been answered by the Full Bench, in favour of the appellants and against the respondent, the controversy in the present appeal is squarely covered by the ratio of the Full Bench Judgment and is answered accordingly.;