Mohan Lal and ors Vs. Mohan Lal - Court Judgment

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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	'title_for_layout' => 'Mohan Lal and ors Vs Mohan Lal - Citation 1008986 - Court Judgment | ',
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			'appellant' => 'Mohan Lal and ors',
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			'casename' => 'Mohan Lal and ors Vs. Mohan Lal',
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			'court' => 'Rajasthan Jodhpur',
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			'decidedon' => '2013-07-25',
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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.

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			'appellant' => 'Mohan Lal and ors',
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			'casename' => 'Mohan Lal and ors Vs. Mohan Lal',
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			'court' => 'Rajasthan Jodhpur',
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			'decidedon' => '2013-07-25',
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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.

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			'casename' => 'Mohan Lal and ors Vs. Mohan Lal',
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			'court' => 'Rajasthan Jodhpur',
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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.

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			'judgement' => '<p style='text-align: justify;'>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p style='text-align: justify;'>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p style='text-align: justify;'>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p style='text-align: justify;'>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p style='text-align: justify;'>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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		'judgement' => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :</p><p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”</p><p>4. J K - J M , / M M 198.6”</p><p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”</p><p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”</p><p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.</p><p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.</p><p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................</p><p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :</p><p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.</p><p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.</p><p>A.K.Chouhan/- 1',
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	(int) 0 => '<p>1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :ORDER: S.B. CIVIL REVISION PETITION NO.514/2005 Mohan Lal & Ors. Vs. Mohan lal Date of Judgment 25th July, 2013 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Rajeev Purohit, for the petitioners. Mr. S.L. Soni, for the respondent. ---- BY THE COURT: REPORTABLE This revision petition under Section 115 CPC has been filed by the defendants aggrieved against order dated 22.09.2005 passed by the learned Civil Judge (Junior Division), Jodhpur, whereby, the petitioners' application under Order VII, Rule 11 (d) CPC was rejected. Brief facts of the case are that respondent-plaintiff filed a suit for redemption of mortgage relating to property situated at Khanda Falsa, Ada Bazar, Jodhpur. It was, inter alia, averred in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs.6,000/- by father of the plaintiff with Ojha Kanni Ram Ji, Champa Lal Ji, Mohan Lal Ji and Sri Kishan Ji with the stipulations contained therein; possession whereof was handed over to the mortgagees; there would be no rent for the property and there would be no interest for the sum of Rs.6,000/-. 2 The suit was resisted by the defendants by filing written statement, to which, a replication also appears to have been filed. However, during the course of the proceedings in the suit, the defendants filed an application under Order VII, Rule 11 (d) CPC, inter alia, with the averments that it is an admitted fact in the plaint that the property in question was mortgaged on 24.01.1950; that their mother offered mortgage money to the defendants several times, which was not accepted and thereafter an advertisement dated 22.02.2000 was published in the newspaper warning general public against entering into any transaction with the mortgagees regarding the suit property and when money was offered in presence of two persons on 30.09.2002, the same was specifically refused, which has been indicated as the cause of action; the suit has been filed for redemption after 52 years on 14.11.2002; under Section 60 of the Transfer of Property Act, 1982 ('Transfer of Property Act'), the suit could have been filed by the plaintiff, however, in terms of Article 61 of the Limitation Act, 1963 ('Limitation Act'), the suit could have been filed within a period of 30 years only, and as the suit has been filed beyond limitation, the same is barred by law. Therefore, the plaint be rejected as barred by law. The plaintiff filed reply to the application and, inter alia, submitted that the law is wrongly being interpreted; there is no limitation for redemption of mortgage as 'once a mortgage always a mortgage'. Ultimately, it was prayed that the application be dismissed. 3 The learned trial court after hearing the parties came to the conclusion that as the right of mortgagor to redeem has not been extinguished either by reason of a decree passed by a Court of law or by an agreement of parties, the right to redeem remains in existence and it cannot be said that the suit was barred by limitation. Consequently, the application as filed by the petitioners was dismissed. It is contended by learned counsel for the petitioners that the order impugned passed by the learned trial court is ex facie against the law as contained in the Transfer of Property Act; as prescribed in the Limitation Act and the law laid down by Hon'ble Supreme Court in this regard and, as such, the order impugned deserves to be quashed and set aside. It was submitted that admittedly the mortgage deed was executed on 24.01.1950 and there was no stipulation in the mortgage deed regarding the period of mortgage, therefore, the right to redeem accrued from the date of execution of mortgage itself and when the suit was filed on 14.11.2002, the same was ex facie barred by limitation as contained in Article 61 of the Limitation Act. Reliance was placed on the law laid down by Hon'ble Supreme Court in Sampuran Singh & Ors. v. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679.Prabhakaran & Ors. v. M. Azhagiri Pillai (Dead) by LRs. & Ors. : (2006) 4 SCC 48.in support of the contentions. It was further submitted that in a case, which is ex facie barred by limitation, the application under Order VII, Rule 11(d) CPC would be maintainable as Limitation Act also falls within the 4 meaning of 'law' under Order VII, Rule 11(d) CPC. Reliance was placed in this regard on Hardesh Ores (P) Ltd. v. Hede & Company : (2007) 5 SCC 614.The learned counsel for the respondent-plaintiff vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to Section 62 of the Transfer of Property Act, it was submitted that right of usufructuary mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, if any, prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in Court. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation. With reference to the principle 'once a mortgage always a mortgage' and that there in fact is no limitation for redemption of usufructuary mortgage, reliance was placed on Achaldas Durgaji Oswal (Dead) through LRs. v. Ramvilas Gangabisan Heda 5 (Dead) through LRs. & Ors. : (2003) 3 SCC 614.I have considered the rival submissions made at the Bar and have gone through the mortgage deed, the plaint filed by the plaintiff, which have been placed on record. The issue which arises for consideration in the present revision petition is when no period is fixed for payment in the case of a usufructuary mortgage, does the law contemplate that suit for redemption and recovery of possession by mortgagor or foreclouser by the mortgagee can never be barred by limitation? The deed of mortgage dated 24.01.1950 in the present case is not in dispute. The relevant terms of the mortgage deed read as under:- " : ' " " , , - ) 4 :- ) :',
	(int) 1 => '<p>4. 4 ) B 4 ii) 4 ii) ................ , ' 4 , - , ' ......" From the above quoted terms of the mortgage deed, it is clear that the property was mortgaged for a sum of Rs.6,000/-, no interest on the said amount and no rent for the said shop was stipulated, the rent of the shop was to be adjusted towards mortgage money, the possession was to be handed over when 6 the entire mortgage money was paid and the amount of rent was to be adjusted towards the mortgage money. The relevant averments, which are crucial for the purpose of determining the cause as pleaded in the plaint and for the purpose of limitation reads as under:- 5. 4 II J - - , 4 - K J M 196.- 22.12.69 J , ' - , J , ”',
	(int) 2 => '<p>4. J K - J M , / M M 198.6”',
	(int) 3 => '<p>1980. , M ' V J - - J M J 4 J ' M - J ' - M - - ”',
	(int) 4 => '<p>4. - - - ' 22.2.2000 Z - ' IM " " ' J ' 4 , 4 V M J - ' 7 J K -, , 7. 4 V M - , 1...............2............... J : -, - M ' V , I , J , , " " J 4 V J J M - 30.9.2002 , " The above averments made in the plaint clearly indicate that the case of the plaintiff is that plaintiff's father approached the mortgagees several times with the mortgage money, however, no heed was paid and his father died on 22.12.1969, thereafter his mother several times offered mortgage money, which was not accepted; plaintiff became major in 1980 and contacted the mortgagees in this regard and when no proper response was forthcoming, advertisement was got published by him on 22.02.2000 and thereafter when the prayer for redemption was specifically refused on 30.09.2002, the same is claimed to be the cause of action for filing the suit on 14.11.20002. The relevant provisions, which need to be noticed in the present case are Sections 58(d), 60 and 62 of the Transfer of Property Act and Article 61(a) of the Limitation Act, which read as under:”',
	(int) 5 => '<p>58. (d) Usufructuary mortgage.- Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or penalty in lieu of interest [or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.',
	(int) 6 => '<p>60. Right of mortgagor to redeem.- At any time after the principal money has become [due], the mortgagor has a right, on payment of tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgage is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this selection has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this selection is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.',
	(int) 7 => '<p>62. Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],- (a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorised to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money],- 9 when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided. PART-V SUITS RELATING TO IMMOVABLE PROPERTY Description of suit Period of Time from which limitation period begins to run 61. By a mortgagor- (a) to redeem or re- Thirty years When the right to re- cover possession deem or to recover of immovable pro- possession accrues. perty mortgaged. ______________________________________________ A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein. The Limitation Act provides for filing a suit by a mortgagor to redeem or recover the possession of immovable property as 30 years and 'time from which the period begins to run' is provided as 'when the right to redeem or to recover possession 10 accrues.' Further, a combined reading of the said provisions would reveal that in case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a suit for redemption and recovery of possession. As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of the Limitation Act read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in jural relationship of mortgagor and mortgagee. 11 So far as proviso to Section 60 of the Transfer of Property Act which provides for extinguishment of right conferred by Section 60 'by act of the parties or by decree of a court' is concerned, the inaction on the part of the mortgagor to institute a suit for redemption or recovery of possession within the limitation prescribed by Article 61(a) of the Limitation Act from the date of accrual of right to redeem or recover possession is also an act of parties. The Hon'ble Supreme Court while dealing with the said aspect in the case of Sampuran Singh (supra) held and observed as under:- 11...............This submission is misconceived, without any merit and has no force. We have already recorded that the period of limitation starts the very first date of a valid mortgage. The court has only to see, whether a mortgage is valid or not. If it is valid, right to redeem to the mortgagors accrues from that very date, unless any restraint in the mortgage deed is provided specifying restriction under it as in the case of C. Beepathuma specific restriction was contained under Ex. P-2..................',
	(int) 8 => '<p>12. Learned Counsel also referred to the language of Section 61(a) of part V of the Schedule to the Limitation Act, which is quoted hereunder :',
	(int) 9 => '<p>61. By a mortgagor - Description of suit Period of Time from which limitation period begins to run (a) to redeem or Thirty years When the right recover possession of to redeem or to immovable property recover poss- mortgaged; ession accrues. ____________________________________________ 13. It is not in dispute at the relevant time period of limitation under this was 60 years and not 30 years.',
	(int) 10 => '<p>14. Submission was, as aforesaid, that right to redeem only accrues when either mortgagors tender the amount of mortgage or the mortgagees communicate satisfaction of the mortgage amount through the usufruct from the land. This submission is misconceived, as aforesaid, if this interpretation is accepted, then till this happens the period of limitation never start running and it could go on for an infinite 12 period. We have no hesitation to reject this submission. The language recorded above makes it clear that right of redemption accrues from the very first day unless restricted under the mortgage deed. When there is no restriction the mortgagors have a right to redeem the mortgage from that very date when the mortgage was executed. Right accruing means, right either existing or coming into play thereafter. Where no period in the mortgage is specified, there exist a right to a mortgagor to redeem the mortgage by paying the amount that very day in case he receives the desired money for which he has mortgaged his land or any day thereafter. This right could only be restricted through law or in terms of a valid mortgage deed. There is no such restriction shown or pointed out. Hence, in our considered opinion the period of limitation would start from the very date the valid mortgage is said to have been executed and hence the period of limitation of 60 years would start from the very date of oral mortgage, that would be from March, 1893. In view of this, we do not find any error in the decision of the first appellate court or the High Court holding that the suit of the present appellants is time barred. Further, in the case of Prabhakaran (supra), Hon'ble Supreme Court again held and observed as under:- 13. Article 148 of the Limitation Act, 1908 (referred to as the old Act) provided a limitation of 60 years for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged. The corresponding provision in the Limitation Act, 1963 (the new Act or the Limitation Act for short), is Article 61(a) which provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years. The period of limitation begins to run when the right to redeem or to recover possession accrues. In the case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, but merely stipulates that the mortgagee is entitled to be in possession till redemption, the right to redeem would accrue immediately on execution of the mortgage deed and the mortgagor has to file a suit for redemption within 30 years from the date of the mortgage. Section 27 of the Limitation Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This would mean that on the expiry of the period of limitation prescribed under the Act, the mortgagor would lose his right to redeem and the mortgagee would become entitled to continue in possession as the full owner. 13 Applying the provisions of law as discussed above and the law laid down by Hon'ble Supreme Court (supra) to the case in hand, it is apparent that in the present case, the mortgage deed was executed on 24.01.1950 and the same did not stipulate any time for redemption of mortgage and, therefore, the mortgage money became due to the mortgagee and the right to redeem or recover possession to the mortgagor accrued on the date of execution of the mortgage deed itself i.e. 24.01.1950. Further, from the averments contained in para 5 of the plaint (quoted above), it is the case of the plaintiff himself that his father approached the mortgagees with the mortgage money before his death on 22.12.1969, which was ignored. Even according to plaintiff's own averments in para 5, the cause of action for redemption of mortgage had in fact accrued on or before 22.12.1969 i.e. the date of death of plaintiff's father when he had offered the mortgage money and the same was refused/ignored. The suit having been filed as late as on 14.11.2002 is, therefore, apparently barred by limitation as provided in Article 61(a) of the Limitation Act. So far as the contention of learned counsel for the respondent-plaintiff based on the principle 'once a mortgage always a mortgage' is concerned, the said principle on its own strength cannot and does not overrule/over ride the provisions of the Limitation Act. The said principle merely provides that the courts would ignore any contract, the effect of which is to create a clog on equity i.e. deprive the mortgagor of his right to redeem 14 the mortgage, but the said principle cannot be pressed in service for ignoring the law of limitation. The provisions contained in Article 61(a) of the Limitation Act cannot be construed to create a clog on equity of redemption as clog on equity of redemption is an act of the parties, whereas, limitation is mere operation of law. The reliance placed on Section 62 of the Transfer of Property Act and the replication filed by the plaintiff does not come to the rescue of the plaintiff either, inasmuch as, the bare averments contained in para 5 and 6 of the plaint quoted above repeatedly indicated the prayer made by the mortgagor for redemption of mortgage from time to time and it cannot be said that in terms of Section 62 of the Transfer of Property Act the right for filing the suit is still to occur on happening of any event as indicated in Section 62. Section 62 merely provides the right of usufructuary mortgagor to recover possession and does not provide for cause of action in given facts and circumstances. The judgment relied on by the learned counsel for the respondent in the case of Achaldas Durgaji Oswal (supra) has no application to the facts and circumstances of the present case as under the said judgment Hon'ble Supreme Court was dealing with the limitation contained in Article 137 of the Limitation Act qua provisions of Order XXXIV, Rule 7 and 8 CPC for passing of a final decree after the preliminary decree for redemption of mortgage had been passed. Even in the said case, the Hon'ble Supreme Court in para 16 clearly recognized the existence of period of limitation for filing a suit for redemption of mortgage. 15 The relevant para reads thus:- 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided. The arguments raised by the learned counsel for the respondent based on para 43 and 44 of the judgment in the case of Achaldas Durgaji Oswal (supra) that any judgment contrary to any observations made in the said judgment would not be a precedent and would not be a god law, has no warrant in law, inasmuch as, the Hon'ble Supreme Court in the case of Achaldas Durgaji Oswal was not dealing with the limitation for filing suit as contained in Article 61(a) of the Limitation Act. From what has been observed, considered and discussed hereinabove, it is apparent that the suit for redemption of mortgaged property comprised in mortgage deed dated 24.01.1950 filed by the plaintiff Mohan Lal on 14.11.2002, by bare reading of the plaint, is ex facie barred by limitation as provided in Article 61(a) of the Limitation Act and in view of judgment of Hon'ble Supreme Court in Hardesh Ores case (supra), the plaint is barred by law. Consequently, this revision petition is allowed. The order impugned dated 22.09.2005 passed by the learned trial court is set aside. The application filed by the petitioners under Order VII, Rule 11(d) CPC is allowed. The plaint filed by the 16 respondent-plaintiff in Civil Original Suit No.219/2004 pending before the Court of Civil Judge (Junior Division), Jodhpur is rejected. No costs. (ARUN BHANSALI), J.',
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A.K.Chouhan/- 1