- (1.) Heard learned counsel for the parties. The defendant-petitioners have preferred this civil revision petition under Section 115 of the Code of Civil Procedure against the impugned order dated 17.8.2011 passed by Civil Judge (Junior Division) Bonli (District Sawaimadhopur) in Civil Suit No. 3/2011 whereby the learned trial Court while deciding issue No. 6 has held that the suit filed by plaintiff-non-petitioner for redemption of mortgage is within limitation.
(2.) Brief relevant facts for the disposal of this revision petition are that the non-petitioner filed a suit for redemption of usufructuary mortgage against the petitioners with the averment that the suit property was mortgaged by Shri Rameshwar Prasad on 18.7.1980 to the petitioners in lieu of security amount of Rs. 7301/- and possession was also delivered to them and subsequently on 28.1.1983, the suit property was sold by mortgagor-Shri Rameshwar Prasad to one Shri Bhag Chand and Shri Bhag Chand sold the same to the plaintiff-non-petitioner and, therefore, he has a right to redeem the suit property. It was prayed by the non-petitioner that the suit property may be ordered to be redeemed and possession of the same may be handed over to him. The petitioners by filing the written statement resisted the suit filed by the non-petitioner on various grounds including the ground that the same is time barred as it has been filed after the expiry of period of limitation of 30 years prescribed for such a suit and the period of limitation commenced from the date of execution of the mortgage-deed dated 18.7.1980. On the basis of pleadings of the parties, necessary issues were framed by the Court below including issue No. 6 to the effect that whether the suit being barred by time is liable to be dismissed. The learned Court below after hearing both the parties decided Issue No. 6 as a preliminary issue and held that the prescribed period of limitation of 30 years for filing the present suit commenced from the date of transaction of mortgage i.e. 18.7.1980 and, therefore, the suit could have been filed till 18.72010 but relying upon the provisions of Section 14 of the Limitation Act (hereinafter to be referred as "the Act"), the Court below held that the period spent in pursing another suit for redemption of mortgage till the date of dismissal of the appeal arising out of that suit i.e. 6.8.2010 is liable to be set-off from the period of limitation prescribed and if calculated on that basis, the present suit is within limitation. Consequently, issue No. 6 regarding limitation was decided against the defendant-petitioners. Being dissatisfied, the petitioners are before this Court by way of this revision petition.
(3.) Assailing the impugned order, learned counsel for the petitioners has raised the following grounds:- (i) In the present case, Section 14 of the Act does not apply but the learned Court below without considering the relevant provision in a right perspective has wrongly set-off the period spent in pursuing the previous suit for the same relief to hold that the present suit is within limitation/According to learned counsel, for the applicability of Section 14 of the Act, apart from other conditions, it is essential that some proceedings bonafidely have been prosecuted with due diligence in a wrong Court but in the present case it is nobody's case that the previous suit for redemption of mortgage was prosecuted in a wrong Court bonafidely and, therefore, the impugned order is liable to be set aside. (ii) According to Article 61(a) of the Act period of 30 years is prescribed for a suit to redeem or recover possession of immovable property mortgaged and such period commences from the date when the right to redeem or to recover possession accrues to the mortgagor. It was submitted that it is well settled that if in the mortgage deed no period is fixed before which the mortgagor cannot redeem the mortgage, the period of 30 years to redeem the mortgage or to recover the possession of the mortgaged property commences as soon as the transaction is effected or mortgage deed is executed. According to learned counsel for the petitioners in the present case no date was fixed in the mortgage deed before which the plaintiff-mortgagor was not entitled to redeem the mortgage and, therefore, the period of 30 years commenced from the date of mortgage i.e. 18.7.1980 and the suit was required to be filed on 18.7.2010 or before it and as the same was filed on 9.12.2010, it is hopelessly time barred. In support of his submissions, learned counsel for the petitioners relied upon the cases of Ramasubramania Mudaliar and others vs. Soorianarayana Iyer and others, 1977 AIR(Mad) 297 and Hari Singh Kaka Singh vs. Harijan Co-operative Society of Chupki, Sub Tehsil Samana, District Patiala, 1971 AIR(P&H) 422.;