N.K. Kapoor, J.
1. This is unsuccessful plaintiffs regular second appeal.
2. Plaintiffs have filed a suit for declaration to the effect that the order dated 14.4.1980 passed by the Collector on a redemption application is illegal, wrong and liable to be set aside and that the plaintiffs are entitled to possession of the suit land after redemption and in the alternative claimed relief of possession by way of redemption on payment of Rs. 34,000/-.
3. Briefly put, 5/18 share of land measuring 345 Kanals 11 Marlas equivalent to 96 Kanals of land was mortgaged by one Nand Singh in favour of Sadhu Singh vide a registered mortgage deed dated 7.6.1974 for a sum of Rs. 34,000/-. Sadhu Singh defendant sold his mortgagee rights in favour of Banta Singh, Darshan Singh and Sukhdev Singh, defendants No. 1 to 3, on 6.12.1976 vide registered deed and put them in possession as mortgagees. Nand Singh sold his land to the plaintiffs vide registered sale deed dated 2.2.1978 and left Rs. 34,000/- with them for payment to the mortgagees for getting the land redeemed. With a view to seek redemption of the land, plaintiffs filed a petition under the Redemption of Mortgagees Act before the Collector who dismissed the same vide order dated 14.4.1980. It is with a view to get rid of the order of the Collector dated 14.4.1980 that the suit was filed by the plaintiffs.
4. This claim was resisted by the defendants who in their written statement stated that the impugned order of the Collector is according to law. They further pleaded that Nand Singh filed a petition to redeem the land before the Collector and the same was dismissed on 10.4.1978. This order having not been challenged within a period of one year has become final and so the petition for redemption filed by the present plaintiffs was wholly misconceived and has rightly been dismissed. They further took the objection that the suit is not within time; that the suit was not maintainable and that the plaintiffs have no locus standi to file the present suit.
5. On the pleadings of the parties, following issues were framed:-
1. Whether the suit is within limitation? O.P.P
2. Whether the defendants have got no locus standi to file the present suit? O.P.D.
3. Whether the suit for possession by way of redemption is not maintainable? O.P.D.
4. Whether the Court has got no jurisdiction to try the present suit? O.P.D.
5. Relief
6. The trial Court decided issue No. 1 against the plaintiffs. Other issues were decided against the defendants. Resultantly, the suit of the plaintiffs was dismissed.
7. Before the lower appellate Court, the matter was once again examined on; facts as well as on law. It was argued by learned counsel for the appellants that the Collector has erred in law in dismissing the petition filed by the plaintiff-appellants. According to the appellants, the earlier petition by Nand Singh was dismissed by the Collector on account of its non-prosecution. The merit of the petition was not considered by the Collector. Otherwise too, Nand Singh having ceased to be owner of the property on account of registered sale deed dated 2.2.1978 had no authority to prosecute the pending petition any more and so the order of the Collector dated 10.4.1978 dismissing such a petition will not preclude the plaintiffs from getting the land redeemed in their own right or for the Collector to decide the same independently despite the dismissal in default of the petition filed by Nand Singh. It was further argued that Nand Singh could not be said to be a representative of the plaintiffs after 2.2.1978. Otherwise too, any such order can not be said to have been passed under the Act. The lower appellate Court, however, did not find any merit in any of the contentions raised by the appellants and so held that the second petition filed by the plaintiff-appellants was not maintainable and the present suit having been filed after the expiry of period of limitation i.e. one year from 10.4.1978, the same has rightly been held to be beyond limitation. So the finding of the trial Court under issue No. 1 was affirmed. Resultantly, the appeal too was dismissed.
8. Learned counsel for the appellants after referring to the factual aspects which have already been briefly noticed argued that the Courts below have erred in law in non-suiting the plaintiffs. Admittedly, the plaintiffs became owner of the suit property on the basis of sale deed dated 2.2.1978 and from this date Nand Singh ceased to be owner of the property and in law had no right to prosecute any such petition any more. So his absence on the date fixed and the dismissal of the petition by the Collector on account of his non-appearance cannot be construed in a manner depriving the appellants of their legitimate right to redeem the property in their own right. According to learned counsel for the appellants, Nand Singh could not be said to be a representative of the plaintiffs. This being so, the act of his non-prosecution will not bar a subsequent vendee from redeeming the property and laying claim to the property in his own right. Both the Courts have miserably failed to comprehend the matter in dispute leading to passing of judgments which are unsustainable in law. The Collector too has erred in law in not entertaining the petition for redemption filed by the plaintiffs on account of dismissal of the petition filed by Nand Singh. This way the decision of the Collector is not on merit and such a decision can legitimately be challenged by another aggrieved person before the civil Court. Accordingly, the judgment and decree of the Courts below deserves to be reversed. Lastly, the counsel argued that it is admitted case of the parties that the land could be redeemed only after the expiry of period of three years from the date of the mortgage. Since the petition filed by Nand Singh was before the expiry of the stipulated period, in fact, no such petition could be filed much-less entertained and this way such a decision cannot be termed to be under the Act.
9. Counsel for the respondents, on the other hand, argued that admittedly Nand Singh filed a petition for redemption and the same was dismissed in default on account of non-prosecution by Nand Singh as well as his counsel on 10.4.1978. Such a decision under the Act and so could be challenged by an aggrieved party within a period of one year from thereafter. Since this order of Collector has not been challenged within the period prescribed, it has become final and so the Collector rightly declined to entertain the second application for redemption filed by the plaintiff-appellants. According to the counsel, the plaintiffs have come in the foot-steps of Nand Singh in view of the principles of lis pendence. According to the counsel, principles of lis pendence applies in a suit or proceedings and a petition under the Redemption of Mortgagees Act will clearly come within the term 'proceedings' and so the plaintiffs being the purchasers pendente lite, the petition filed for redemption by Nand Singh will preclude them from reagitating the matter. This way the Courts below have rightly construed the relevant provisions of Redemption of Mortgagees Act as well as Transfer of Property Act while examining the matter in dispute. The counsel further argued that the Collector acts as a Court and so- the provisions of the Code are applicable to the proceedings conducted before the Collector. As regards the plea raised by the appellants that the property could not be redeemed before the expiry of period of three years as stipulated in the mortgage deed, the counsel argued that the same does not prevent a party from waiving such a plea. In the instant case, Nand Singh chose to redeem the property before the expiry of three years limit and so the petition was entertained by the Collector but ultimately dismissed for non-prosecution. At best such an objection could be taken by the mortgagees and not by the mortgagors. Accordingly, it was prayed that the appeal deserves to be dismissed.
10. Facts leading to the present controversy have been briefly noticed i.e. execution of mortgage deed by Nand Singh; his filing a petition for redemption and its dismissal by the Collector on account of non-prosecution; the order dated 10.4.1978 the date when Nand Singh nor his counsel failed to put in appearance and so the Collector had no choice but to dismiss the same. No doubt, such an order could be challenged by Nand Singh within a period of one year before a civil Court of competent jurisdiction. The crux of the matter is whether Nand Singh can be said to be a representative of subsequent vendees - plaintiff appellant after having sold the land on 2.2.1978. The word 'represent' as per Chambers English Dictionary (Reprint 1990) means 'to exhibit the image of; to use or serve as a symbol for, to stand for; to be a substitute agent, deputy etc.' So the representative is an emissary, envoy, agent. As per Section 2(11) of the Code of Civil Procedure, term 'legal representative means any person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of party so suing or sued. So a representative is a person who is an agent of the other and in law is entitled to represent. Before a person can be termed to be an agent, he is to have a authority from his principal to represent him. Such authorisation has to be in writing. In the context of the present case, Nand Singh ceased to have any interest in the property and so could not in law deemed to be a representative of vendee when the Collector dismissed the petition for non-prosecution on 10.4.1978.
11. The matter can be examined from another angle also. Whether the plaintiffs had any notice of the pendency of the petition before the Collector? Sale deed dated 2.2.1978 does not make mention of this and in the absence of notice any such decision against a party (who had not even been impleaded) will not bind him. Much emphasis has been laid by the counsel for the counsel for the respondents upon the doctrine of lis pendence. According to the counsel, since the plaintiffs acquired right during the pendency of the proceedings before the Collector, they would be bound by any such decision unless challenged within the stipulated period. According to Section 52 of the Transfer of Property Act, a suit or proceeding is deemed to commence from the presentation of the plaint or institution of the proceedings in a Court of competent jurisdiction and since the decision by the Collector is that of a Court, the principles enshrined in Section 52 of the Transfer of Property Act apply to the facts of the present case thus debarring the plaintiffs from reagitating the matter in view of the pendency of the earlier decision between the defendant respondents and Nand Singh. Before applying the principles of lis pendence, it is to be determined whether the petition before the Collector can be termed to be in the nature of the suit and that the Collector acts like a Court. The term 'Court' has not been defined in the Code. All the same, normally it is applied to the civil proceedings envisaging filing of plaint, written statement, framing of issue and adjudication of the same culminating in passing of judgment and drawing of a decree. The proceedings before a Collector under the Redemption of Mortgagees Act are in the nature of summary proceedings. The Act does not envisage drawing of a petition strictly in the form of plaint, filing of written statement and framing of issues etc. The purpose of the Act appears to be to decide the matter in a summary manner i.e. without going into the elaborate procedure of a civil suit. The Collector under the Redemption of Mortgagees Act exercises the power of a revenue officer. Under the Punjab Tenancy Act, the revenue officers have dual functions i.e. they exercise the powers of revenue officers as well as powers of revenue court. When these revenue officers act as revenue Courts, they follow the procedure prescribed under the Code i.e. filing of plaint, written statement, framing of issues, passing of judgment and drawing of a decree whereas while acting as a Revenue Officer they do not follow the stringent provisions of the civil Court and only follow some of the provisions of the civil Court such as a brief statement and pleadings made by or on behalf of the parties whether oral or written is to be as brief as it can be and not to be argumentative, verification of the application, appointment of Commission, apportionment and recovery of costs, execution of ejectment order etc. Since the Collector exercised his powers as a revenue officer, any such decision cannot be termed to be that of a Court. Section 52 of the Transfer of Property Act refers to pendency of a suit or proceedings. Proceedings in this context would mean any such proceedings before a Court of competent jurisdiction which has trapping of a civil Court. So strictly speaking, the doctrine of lis pendence will not be strictly applicable. Otherwise too, on the basis of general principles as well and especially in the facts of the present case, the same cannot be construed in a manner depriving a person of his legitimate claim to redeem independently of an earlier decision against the vendor.
12. The matter can be examined from another angle also. Under Section 4 of the Redemption of Mortgagees Act, the mortgagor is entitled to redeem the property at any time after the principal money becomes payable and before a suit for redemption is barred. Thus, since quo non to institute such a petition is when the principal money has become payable. In the present case, on facts it is clear that Nand Singh filed a petition before the expiry of three years as stipulated in the mortgage deed and so such a petition was wholly misconceived and ought not to have been entertained by the Collector on this ground alone. Unfortunately, for the subsequent vendees the matter initially was not examined by the Collector while entertaining the same whereas dismissal of such a petition on account of non-prosecution is being construed as a bar preventing them from redeeming the property on payment of the mortgage amount. This way the Collector has indeed erred in law in not entertaining the petition and deciding the same on merit. Accordingly, I have no hesitation in holding that the order of the Collector is illegal and deserves to be set aside.
13. Resultantly, I accept the appeal, set aside the judgment and decree of the Courts below and grant a decree of possession to the plaintiffs subject to the repaying the mortgage amount of Rs. 34,000/- which amount shall be deposited by the plaintiffs in the trial Court within a period of two months from this judgment to be paid to the defendants failing which the suit shall be deemed to have been dismissed. No costs.