Smt. Chameli Vs. Sube Singh - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. sections 60 & 62: usufructuary mortgage right to seek redemption limitation held, the limitation of 30 years under article 61(a) begins to run when the right to redeem or the possession accrues. the right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. the right to seek foreclosure is co-extensive with the right to seek redemption. since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. thus the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. in view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore, always redeemable would be applicable. the plea that after the expiry of the period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property would not be tenable. the mortgage cannot be extinguished by any unilateral act of the mortgagee. since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. it is equally well settled that it is not title of the suit, which determines the nature of the suit. the nature of the suit is required to be determined by reading all averments in plaint. such declaration cannot be claimed by ban usufructuary mortgagee. therefore, in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on date of mortgage but will arise on date when mortgagor pays or tenders to the mortgagee or deposits in court, the mortgage money or the balance thereof. thus, it was held that once a mortgage always a mortgage and is always redeemable. -- transfer of property act, 1882 [c.a. no. 4/1882]. sections 60 & 62; usufructuary mortgage right to seek redemption limitation held, since the mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation for which it is given, the security must, therefore, be redeemable on the payment or discharge of such debt or obligation. fact that at one point of time the mortgagor for one or the other reason mortgaged his property to avail financial assistance on account of necessities of life, the mortgagors right cannot be permitted to be defeated only on account of passage of time. the mortgagee remains in possession of the mortgaged property; enjoys the usufruct thereof and, therefore, not to lose anything by returning the security on receipt of mortgage debt. the limitation of 30 years under article 61(a) begins to run when the right to redeem or the possession accrues. the right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. the right to seek foreclosure is co-extensive with the right to seek redemption. since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. thus the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. in view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore, always redeemable would be applicable. the plea that after the expiry of the period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property would not be tenable. the mortgage cannot be extinguished by any unilateral act of the mortgagee. since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. it is equally well settled that it is not title of the suit, which determines the nature of the suit. the nature of the suit is required to be determined by reading all averments in plaint. such declaration cannot be claimed by ban usufructuary mortgagee. therefore, in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on date of mortgage but will arise on date when mortgagor pays or tenders to the mortgagee or deposits in court, the mortgage money or the balance thereof. thus, it was held that once a mortgage always a mortgage and is always redeemable. vinod k. sharma, j.1. this revision petition under article 227 of the constitution of india is directed against the order dated 17.4.2009, passed by the learned addl. chief judicial magistrate, rohtak acting as presiding officer of the lok adalat vide which the petition filed by the petitioner for execution of an order passed under section 125 of the code of civil procedure, has been ordered to be disposed of with the consent of the parties.2. the order passed by the lok adalat reads as under:1. present maintenance petition no. 461 dated 3.6.2008 of the court of ld. acjm, rohtak has been received on reference.2. petitioner has claimed maintenance amount of rs. 14,400/- for the period december 2004 to november 2007 @ rs. 400/- per month.3. decree holder has placed on file exhibit px statement of the panipat primary cooperative agricultural and rural development bank ltd. panipat of its bapoli branch, exhibit cy affidavit in support of this statement and exhibit cz copy of the order dated 7.2.2009 of the court of additional civil judge (senior division) sonepat.4. in light of the record, a joint statement exhibit ca has been got recorded to the effect that originally the maintenance was rs. 400/- per month and then firstly it was raised to rs. 1500/- per month and then it was further raised to rs. 2200/- per month by the hon'ble high court and that this amount @ rs. 2200/- per month has been paid for the period december 2004 to november 2007 as well and that counsel of the parties had made statement to that effect in the court of additional civil judge ( senior division) sonepat and accordingly the order dated 7.2.2009 was passed by the court and that the execution petition was filed as fully satisfied.5. accordingly, the present petition in the circumstances is admitted as having become infructuous and as such this petition is hereby disposed off as not pressed further as the same having become infructuous.6. record of the case be returned to the trial court which shall be supplying the certified copies of this award and statement ca to parties free of cost under rules.3. the learned counsel for the petitioner contends that, the petitioner had not given consent to the passing of this order, therefore, the lok adalat had no jurisdiction to pass an order, and furthermore no maintenance was paid, as mentioned in the order.4. the learned counsel for the petitioner contended that, the statement referred to in the order was with regard to the maintenance, which was paid to her at sonepat, in a case filed under hindu adoption and maintenance act, and no maintenance has been paid under section 125 cr.p.c.5. notice of motion was issued.6. the learned counsel for the respondent has contested this petition on the plea that, the order passed is just and fair, as maintenance fixed under section 18 of the hindu adoption and maintenance act was paid and no maintenance, therefore, was payable under section 125 of the code of criminal procedure. in support of this contention the learned counsel for the respondent placed reliance on the judgment of this court in the case of krishan lal v. smt. ram piari and ors. 1997(1) c.c.j. 477, wherein this. court was pleased to lay down as under:12. the learned single judge concluding the matter as under:in the result, i hold that the magistrate was right in holding that the order passed in the m.c. 7 of 1957 did not stand automatically wiped out as a result of the civil court decree.he was therefore, right in refusing to cancel the order passed in m.c. 7 of 1957. but, if any enforcement of that order is prayed for concurrently with execution of the civil court's decree, he will not be exercising his discretion judicially, if he orders enforcement except, under circumstances which i have already enumerated in this order, viz. in case of insolvency or pauperism. crl. r.c. 1221 of 1991 will, therefore, stand dismissed.from the above conclusion, it becomes clear that there are two orders fixing maintenance i.e. one passed by the magistrate under section 125 of the code and the other passed by a civil court regarding the same period, that itself will not wipe out the order of the magistrate and the magistrate would be justified in refusing to cancel or vary his order in certain circumstances like insolvency or pauperism of the husband. however, regarding the enforcement of the order passed under section 125 of the code concurrently with the order of the civil court, the magistrate would not be justified to enforce his order for the same period and he would refer the parties to the civil court.7. the learned counsel for the respondent also placed reliance on the judgment of the hon'ble rajasthan high court in the case of shanti devi v. mathura lal 1995(3) ljr 270 to contend that no party should get double maintenance amount passed in separate proceedings.8. the contentions raised by the learned counsel for the respondent are misconceived. this court in the case of krishan lal v. smt. ram piari and ors. (supra) was pleased to lay down that maintenance fixed under the criminal court has to be executed by the criminal court, whereas the maintenance fixed under the civil court has to be executed by the civil court and these can not be consolidated.9. similarly, in the case of shanti devi v. mathura lal (supra) the hon'ble rajasthan high court has dismissed the revision filed against an order vide which the additional sessions judge had ordered the adjustment of amount granted by the magistrate in other proceedings. the authorities relied, therefore, can be of no help to the respondent, as both orders passed are executable.10. the learned counsel for the respondent also raised objection to the maintainability of this revision under article 227 of the constitution of india. the contention of the learned counsel for the respondent is that, the order was passed by the criminal court, therefore; this court under article 227 of the constitution of india would have no jurisdiction to entertain the present revision against the order impugned by the petitioner. there is force in this contention of the learned counsel for the respondent.11. this revision against the order passed on criminal side is not competent. the impugned order was passed in execution application, on an application under section 125 of the code of criminal procedure. 'dismissed as not competent',12. however, this order shall not debar the petitioner from seeking his remedy under section 482 of the code of criminal procedure in accordance with law, if so advised.