Judgment:
Anand Byrareddy, J.
1. The appeal has been admitted on the following questions of law, namely:
Whether in facts and circumstances of the case, the Courts below were justified in dismissing the suit on the ground the suit is barred by limitation?
Whether the Appellate Court was justified in denying the relief on the ground that the suit is bared by limitation, having held, the debt is wiped out under the provisions of the Karnataka Debt Relief Act, 1980 and the plaintiff is entitled for redemption of the mortgaged property?
2. To answer these and either questions of law that arise for consideration, it is in order to state the facts of the case.
The appellant was the plaintiff before the Trial Court and had filed a suit for redemption of a usufructory mortgage executed by his father in favour of the respondent, who was the defendant, on 30-10-1953 in respect of suit schedule 'A' property. The mortgage amount was Rs. 1,200/-. It was agreed that the debt was to be discharged at the end of any Hindu year Hevilambi and the mortgage could be redeemed. Though the mortgage was termed as a usufructory mortgage, the mortgagors claimed as continuing in actual possession of the suit property, but were paying the annual income arising from the land to the respondent.
The plaintiffs father is said to have died in the year 1984. The plaintiff having succeeded to the said property, had preferred a suit, to contend that the father of the plaintiff was a debtor as defined under the Karnataka Debt Relief Act, 1980 (hereinafter referred to as 'the Act' for brevity). He had no other properties except suit schedule 'A' property. Therefore the debt comprised in the usufructory mortgage stood discharged and relinquished as per the Act and therefore, the plaintiff was entitled to seek possession by operation of law. Though the father of the plaintiff had been demanding redemption, the defendant having refused, the suit was preferred.
The defendants contested the suit and contended that the usufructory mortgage was admitted, but it was denied that the plaintiff had continued in possession and the defendant claimed that the defendant was in possession and enjoyment under the mortgage. It was denied that the father of the plaintiff was a debtor as defined under the Act and the question of mortgage having been discharged by operation of law was denied. It was also contended that the suit was barred by limitation. Therefore, the suit for redemption of mortgage was not maintainable. It is asserted that the income of the plaintiff was more than Rs. 15,000/- and hence, the plaintiff could not prosecute the suit on the ground that even if his father was a debtor the plaintiff could not claim the benefit of the Act and therefore was not entitled to seek any such relief.
The Trial Court negatived the case of the plaintiff and held that in terms of Section 5 of the Act, the plaintiff or his father could have approached the jurisdictional Assistant Commissioner to exercise a right under the Act on or before 31-12-1981 and held that the plaintiff having approached the Court after a considerable lapse of time, the Trial Court opined that it had no jurisdiction to consider the case of the plaintiff. Secondly, the Trial Court has also held that since the plaintiff had not obtained an order from the jurisdictional Assistant Commissioner under Section 5 of the Act, he could not be permitted to claim the benefit of the Act. On the question of limitation, the Trial Court held that though the plaintiff had contended that the due date for redemption of mortgage as per Ex. P. 1 was phalgana 30th of any Hindu year after Hevilambi year, the defendant having produced the Panchangam of Hevilambi Samvatsara, the Trial Court has found that the Samvatsara ended on 30th March, 1958 and therefore, it was held that the Samvatsara would not fall in the year 1960, as contended by the plaintiff and the plaintiff having demanded redemption on 24-9-1989 and the suit having been filed on 30-9-1989, the suit was clearly barred in terms of Article 61 of the Limitation Act, 1963, which prescribes a period of limitation of 30 years to redeem or recover possession of immoveable property mortgaged and since the right to redeem or recover possession accrues when the right to redeem or to recover possession accrues, which was as on 30-3-1958, the suit ought to have been filed on or before 30-3-1988. The plaintiff had challenged the same by way of an appeal before the First Appellate Court. The First Appellate Court, in turn, held that the plaintiff was entitled to redemption of mortgage without payment of the mortgage amount with reference to the provisions of the Act and affirmed the finding of the Trial Court that the plaintiff was not in possession of the mortgaged property as claimed but however, on the ground of limitation, affirmed the finding of the Trial Court that the suit was barred by limitation. It is this which is sought to be challenged in the present appeal.
3. The Counsel for the appellant would seek to contend that the mortgage created by the appellant is not denied. The same was created by the father of the appellant. The father having died, the appellant has prosecuted the suit as a legal representative of the mortgagor. It was therefore relevant as to whether the debtor namely, the father of the appellant was covered under the provisions of the Act. While it is a fact that the plaintiff-appellant had not chosen to approach the Competent Authority prescribed under the Act to seek the relief that was available under the Act, there was no issue as to whether the appellant was precluded from approaching the Civil Court. The only issue on which the First Appellate Court has affirmed the judgment of the Trial Court is on the ground of limitation. The Counsel would contend at length and would seek to interpret the terms of the mortgage deed, to assert that the right to seek redemption of mortgage actually accrued in the year 1959 and not 1958 and that the suit was in time. Since under Article 61(a), the right to redeem and recover possession of the property accrued in 1959 and the 30 years period of limitation would have expired in the year 1989 and therefore, the Courts below were not justified in dismissing the suit on the ground of limitation.
The Counsel would seek to place reliance on a judgment in Ghouse Mohaddin v. Sub-Divisional Magistrate, Belgaum and Anr. 1980(1) Kar. L.J. 171 and also in Sita Ram Singh v. Gaya Prasad : AIR 1953 All. 620.
4. While the Counsel for the respondents would submit that the Courts below have rightly held that the suit was barred by limitation. The interpretation sought to be placed on the term in the mortgage deed as to the date on which the right to seek redemption accrued has been addressed by the Courts below and it is with reference to the Hindu Panchangam that the Courts have arrived at a finding that the Hevilambi year ended on 30th March, 1958. There is no material produced to contradict the finding with reference to the said Hindu Panchangam referred to by the Courts below. The mere attempt on the part of the Counsel to place an interpretation to the contrary does not advance the case of the appellant. The Counsel would further contend that insofar as the contention that the debt stood effaced with the coming into force of the Karnataka Debt Relief Act, 1980 is also not available to the appellant, unless the appellant had made an application to the Assistant Commissioner on or before 31-12-1981 in terms of Section 5 of the Act and an order was passed holding that the appellant was a debtor under the Act. Therefore, the appellant has not made out any case for consideration and the questions of law will necessarily have to be answered against the appellant. He would also point out that the facts of the case in Ghouse Mohaddin sought to be relied upon by the appellant are not the same as in the present case and are totally alien. The context in which that judgment was rendered was that an order had been passed under Section 4 of the Act in favour of the respondent. The petitioner, however, had preferred a suit seeking specific performance of an agreement of sale which had been executed in his favour and the same having been decreed, the petitioner was before the Court contending that the Civil Court was not justified in holding that the agreement in question was not a mortgage deed and proceeding to decree the suit. It was this which was sought to be urged. This Court held that a Civil Court was competent to arrive at a finding as to the nature of the transaction and not only the parties to the suit, but the authority as well would be bound by the finding as to the nature of the transaction and therefore, he would submit that the reliance sought to be placed on the said decision is misconceived. And he would further submit that the reliance sought to be placed in the decision in Sita Ram Singh is also not relevant, as the question therein was whether the mortgage was subsisting as on the date the Uttar Pradesh Debt Redemption Act came into force and therefore would not be relevant.
5. In the light of these rival contentions and having regard to the peculiar circumstances of the case, which is not highlighted either by the Courts below or the Counsel for the appellant, the questions of law framed by this Court would have to be reframed as hereunder:
Having regard to the scope and object of the Karnataka Debt Relief Act, 1980, whether the suit by the plaintiff could be addressed on the question of limitation on which the First Appellate Court has dismissed the suit?The First Appellate Court having found as a fact that the provisions of the Act stand attracted insofar as the appellant is concerned, but having proceeded to dismiss the suit as being barred by limitation, it is to be seen that in terms of Section 3(f), the mortgage deed created by the appellant stood redeemed and by operation of the section, the property was to be released in favour of the appellant. The formality of the appellant, or before him his father, making an application under Section 5 for delivery of possession was a procedural requirement which was not availed of. The suit therefore by implication was limited to seeking delivery of possession on account of the mortgage having been redeemed by operation of law. The incidental requirement of arriving at a finding as to whether the appellant was a debtor under the Act, which in any event, has been found as a fact, is really in substitution of such a finding being rendered in terms of Section 5 of the Act. The mortgage was certainly redeemable on the date the Act has come into force, namely 31-12-1980 and the operation of the Act, more particularly, Section 3, is notwithstanding any contract or other law. The Act does not prescribe a period of limitation within which recovery of possession of the mortgaged property ought to be secured. The prescription under Section 5, that a debtor may make an application on or before 31-12-1981 is merely directory and cannot be construed as a provision providing for limitation. There was no bar for the suit being filed by the appellant. In this view of the matter, even if the law of limitation was said to be attracted, it would have to be with reference to Article 65 of the Schedule to the Limitation Act, 1963, which prescribes a period of limitation of 12 years to recover possession of immoveable property based on title. In other words, the Act having conferred the benefit of redemption of mortgage created by the appellant, the period of limitation, within which, the appellant could have recovered possession of the immoveable property would arise from the date, the Act has come into force when he was entitled to recover possession of the property. If thus viewed, the suit filed in the year 1989 was well-within 12 years from the date that the Act has come into force and hence, the finding of the Courts below proceeding on the basis that the suit was one for redemption of mortgage, while also holding that the provisions of the Karnataka Debt Relief Act, 1980 applied is a contradiction in terms. The redemption of mortgage is deemed with the coming into force of the Act. Such a relief being sought before the Civil Court was superfluous.
Insofar as the judgment and decree was concerned, it was more appropriately a suit for possession and the right to recover possession having accrued with the coming into force of the Act. Hence, the First Appellate Court was in error in applying the law of limitation, more particularly, Article 61, in computing the period of limitation, with effect from the year 1958, proceeding on the basis that the relief of redemption of mortgage was contemplated. Though the plaintiff-appellant, on a misconceived notion, may have incorporated such a relief, which is further sought to be canvassed even before this Court. In the opinion of this Court, a proper interpretation of the legal position is as above. Accordingly, the reframed question of law is answered in favour of the appellant.
Accordingly, the appeal is allowed. The judgment and decree of the Courts below are hereby set aside. The respondent shall deliver vacant possession of the suit property to the appellant.