Gurmukh Singh Vs. Sarwan Singh and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - however, on appeal the suit was decreed and order of the collector was held to be bad in law as a partial redemption could not be allowed. the only order of the collector which rejected the prayer for redemption is of july 31,1984 and sarwan singh plaintiff was well within his rights to challenge the same and establish his right of redemption by filing the suit. 100 aforesaid would not be applicable to the case in hand as far as earlier order of the collector dated june 1, 1977 is concerned, whereas from the subsequent order of the collector whereby application of the plaintiff for redemption of 6-k, 17-m of land was dismissed is concerned, the present suit is well within time. 61 of the limitation act and is well within time.1. this appeal is by the defendants gurmukh singh and others challenging judgment and decree of additional district judge, kapurthala, dated september 7, 1989, whereby appeal filed by sarwan singh plaintiff was accepted and judgment and decree of the trial court was set aside where by the suit was dismissed.2. sarwan singh filed the suit for possession by redemption of 6 kanals 7 marias of land. he claimed to be co-sharer having purchased 1 kanal 17 marias of land from other co-sharers arnar chand and faqiria sons of ram chand son of ishar. moola singh, another son of ishar, had mortgaged land measuring 6 kanals 7 marias on january 28, 1958 in favour fo jawala and gurmukh singh, his brothers. sarwan singh filed application before the collector for redemption of 1 kanal 17 marias of land which he had purchased. the collector allowed redemption vide his order dated june 1, 1977. acivil suit was filed challenging the aforesaid order of the collector by some of the present defendants. the suit was dismissed. however, on appeal the suit was decreed and order of the collector was held to be bad in law as a partial redemption could not be allowed. this led sarwan singh to file another application before the collector for redemption of the entire mortgaged land measuring 6 kanals 7 marias. this application was filed on february 23, 1983 and was dismissed by the collector on july 31, 1984. sarwan singh thus filed the present suit challenging the order of the collector aforesaid claiming redemption of the entire land which was mortgaged measuring 6 kanais 7 marias claiming himself to be a co-sharer by purchases of 1 kanal 17 marias of land, as stated above. the trial court dismissed the suit whereas the lower appellate court has decreed the suit.3. though on the pleadings of the parties as many as nine issues were framed, however, in appeal the points raised are being discussed.4. it has been argued on behalf of the defendant-appellants that second application before the collector for redemption of the land was not maintainable. hence suit for redemption of the land is also not maintainable. tn support of this contention reliance has been placed on section 13 of the redemption of mortgages act, 1913 (for short called 'the act') which reads as under:'13. no second petition:-- thedismissal of a petition under this act shall bar any further petition under this act by the same petitioner or by representative in respect of the same mortgage.'there is no force in the contention of the learned counsel for the appellats. what is barred under section 13 of the act is a second petition for redemption in respect of the same mortgage where earlier petition had been dismissed. present is not a case where earlier petition filed by sarwan singh was dismissed by the collector which could bar the presentation of the second petition. section 12 of the act reads as under:--'12. saving of suits to establish rights:--any party aggrieved by an order made under section 6, 7, 8, 9, 10 or 11 of this act may institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive. setting aside ex parte orders or orders of dismissal :-- notwithstanding anything in this section a mortgagee against whom an ex parte order under section 7 had been made or a petitioner, whose petition has been dismissed in default under section 6 may apply to the collector to have such order of dismissal set aside, and the collector may in his discretion set aside, such order of dismissal on such terms as to costs or otherwise as he may deem fit; provided that the order of dismissal shall not be set aside unless notice of the application has been served on the opposite party.'this provision authorises a person whose application in respect of the mortgage has been dismissed by the collector to establish hisright in a civil court by instituting a civil suit. subject to the result of the suit, the orders passed by the collector under sections 6 to 11 of the act are to remain as conclusive. reading of the aforesaid two provisions makes it abundantly clear that two remedies are available in respect of the mortgages; firstly to establish right of redemption under the provisions of aforesaid act and if the decision of the collector is not favourable to establish the right by filing a suit. of course, when first application is dismissed by the collector, second application will not be maintainable as provided under section 13 of the act. however, when first application was allowed and the opposite party had challenged the said order and on technical grounds the order is not implemented that will not extinguish the mortgagor's right to redeem the mortgage. learned counsel for the appellants referred to the decision of the full bench of the lahore high court in tulsi das alias nirmal das v. diala ram, air 1943 lahore 176. that was a case where a petition under section 4 of the act was dismissed as premature and it was held that section 13 barred another application. on facts ratio of the decision is not applicable to the case in hand. the only order of the collector which rejected the prayer for redemption is of july 31,1984 and sarwan singh plaintiff was well within his rights to challenge the same and establish his right of redemption by filing the suit. obviously, the earlier order of the collector which was in favour of sarwan singh was not to be challenged by him. either by allowing application of sarwan singh to redeem 1-k, 17-k, 17-m land or by decretal of the suit filed by gurmukh singh and others' challenging the aforesaid order of the collector mortgage in any manner was extinguished. right to redeem the mortgage could only be extinguished by efflux of time or by any other provision in any statute, such as the provisions of the redemption of mortgages (punjab) act. the provisions of this act are, therefore, to be strictly construed. it was held by the privy council in reghunath singh v. mt. hansraj kunwar, air 1934 pc 205 that the right to redeem is a rightconferred upon the mortgagor by enactment of which he can only be deprived by means and in manner enacted for that purpose and strictly complied with. that was a case where a provision was made in the decree in a suit for redemption that in case of default by the plaintiff for payment, his case was to stand,as dismissed. it was held that such an order could not be construed as meaning that the plaintiff was to be debarred of all rights to redeem or that the decree was an order of a court extinguishing the right to redeem within the provisions of s. 16 of the transfer of property act. the second suit for redemption in such a case was held to be maintainable. further, clarifying it was observed that unless it could be said that a decree involved a decision that mortgagor's right to redeem was extinguished, it could not operate by way of res judicata so as to prevent the courts u/ s. 11 of the code of civil procedure from trying a second redemption suit. several cases have been cited which were discussed by the fulll bench of this court in chanan singh v. smt. majo (1976) 78 pun lr 726: (air 1976 punj & har 310) which need not be discussed in detail. the full bench, in a case where application filed under the redemption of mortgages (punjab) act was held to be premature, held that the bar of s. 12 of the act did not apply to the suit being brought for redemption of the mortgage under the general law. relying upon the aforesaid full bench (single judge) decision in nikka singh v. darshan singh, 1984 pun t,j 33 : (air 1984 nqc 173) wherein the collector simply refused to proceed with the application filed before him without pronouncing any right on the mortgagor, it was held that remedy of suit for redemption under the general law was not barred, s. 12 of the redemption of mortgages (punjab) act was not attracted.5. the contention of learned counsel for the appellants is that the present suit should be held to be barred by time as having not been filed within a period of twelve months from the first order of the collector dated june i, 1977. reference has been made to art. 100 of the first schedule attached to the limitation act which provides a period of one year for setting aside an order of anofficer of the government in his official capacity. on the other side, it has been argued that art. 100 aforesaid would not be applicable to the case in hand as far as earlier order of the collector dated june 1, 1977 is concerned, whereas from the subsequent order of the collector whereby application of the plaintiff for redemption of 6-k, 17-m of land was dismissed is concerned, the present suit is well within time. even otherwise, it is argued that the present suit had been filed within thirty years to redeem the mortgaged property as provided under art. 61 of the limitation act and is well within time. this matter is concluded by the decision of the supreme court in sheolal v. sultan, air 1971 sc 93. this was a case before the limitation act was amended and art. 14 of the old limitation act was applicable which is equivalent to art. 100 of the limitation act. the collector dismissed application for redemption of the mortgage stating that complicated questions of law were involved and the mortgagor was relegated to civil suit. it was held that such an order did not fall under s. 9 of the redemption of mortgages (punjab) act to attract the provisions of art. 14 of the limitation act. it was held as under (at p. 95 of air):--'an order relegating the mortgagor to a civil suit for obtaining an order of redemption even if it becomes final does not bar a suit for redemption, for it raises no cloud on the title of the mortgagor arising out of the mortgage. such an order is not one which is required to be set aside. an order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside. the order of the assistant collector merely declared the rights of the plaintiff under the common law; it did not bar the claim to relief for redemption in civil suit, and on that account it was not an order which was required to be set aside.'applying the ratio of the decision of the supreme court to the facts of the case in hand, it may be noticed that order dated june 1, 1977 passed by the collector being in favour of sarwan singh plaintiff allowing redemption of 1-k, 17-m of land was notrequired to be set aside by sarwan singh by filing a suit. it was only subsequent order of the collector dated july 31, 1984 whereby application of sarwan singh for redemption of their entire land 6-k, 17-m was rejected that gave cause of action to him to challenge the same in the civil court. therefrom the present suit having been filed on october 10, 1984 is obviously within time.6. it has been argued on behalf of the appellants that sarwan singh is not entitled to redeem the entire mortgaged land as he is only purchaser of 1-k, 17-m of land. there is no force in this contention. a co-sharer before partition is effected is entitled to each bit of the joint land. by purchasing 1-k, 17-m of land sarwan singh plaintiff became a co-sharer as the land was purchased from amar chand and faquria sons of ram chand son of ishar, who were co-sharers. till partition is effected a co-sharer is entitled to get the land redeemed from the mortgagees on payment of the mbrtgaged amount.7. the mere fact that the mortgagees are also co-sharers in the mortgaged land being brothers of the mortgagor, is no ground to hold that the mortgage cannot be redeemed. in such circumstances a decree for joint possession is to be passed with further clarification that at the time of partition the present plaintiff would only be entitled to share of the land purchased by him out of the entire land including the mortgaged land.8. for the reasons recorded, finding no merit in the appeal the same is dismissed with costs. judgment and decree of the lower appellate court are affirmed as above.9. appeal dismissed.