Surinder Singh, J.
1. This appeal under Clause X of the Letters Patent is directed against the judgment of a learned single Judge of this Court rendered in Regular Second Appeal No. 1259 of 1972. Some undisputed facts may be noticed in order to understand the litigious course adopted by the controversy between the parties. The original owner of the land in dispute, Thambu by name, mortgaged the property with possession on July 10, 1963. About two years later, to be precise, on July 13, 1965, Thambu moved an application before the Collector for the redemption of the mortgage by means of a summary procedure available under the Redemption of Mortgages (Punjab) Act, 1913 (for short, the Act). However, when the matter came up before the Collector on November 10, 1965, he made a statement that in view of a compromise effected by him with thecontesting party, he was not desirous of getting the land redeemed. The application of Thambu was, therefore, dismissed by the Collector in view of this statement.
2. It is also not disputed that on May 24, 1967, Thambu filed another application before the Collector under the Act aforesaid, but his application was dismissed vide order dated Sep. 14, 1967 (Copy Exhibit P-3), on the ground that a second application for redemption was not competent under the Act. It transpires that Thambu decided to call it a day by selling the property in favour of the appellants on February 12, 1968.
3. The appellants relit the torch of their proprietary rights first by means of a third application filed before the Collector which was dismissed vide order dated August 25, 1969, copies whereof were produced by both the parties as Exhibits P-2 and D-2 respectively. Thereafter, the appellants instituted a regular civil suit for obtaining possession of the suit land by redemption of the mortgage on payment of the mortgage amount. The suit was, however, dismissed by the trial Court only on the ground that the same was barred by limitation, as not having been instituted within one year from the order of the Collector passed on September 14, 1967, in the second application for redemption. Regardless of the set back, the appellants went up in first appeal before the District Judge in Civil Appeal No. 70/13 of 1971, where the table was turned. The learned District Judge, after a consideration of the respective contentions advanced by the parties, came to the conclusion that the order passed by the Collector on November 10, 1965, in the first application for redemption, not being a decision on merits, no suit under Section 12 of the Act was necessary to be filed within the period of one year and the appellants were entitled to file a suit in the Civil Court under the ordinary law of limitation. Here, it may be observed that there is no controversy between the parties that but for the attack in regard to the limitation prescribed for a suit by virtue of the Act, the present suit filed by the appellants was otherwise well within the period of limitation prescribed for suits of that nature. The learned District Judge, therefore, passed a preliminary decree under Order XXXIV, Rule 7, Code of Civil Procedure, in favour of the appellants and against the respondents for possession of the suit land by redemptionon payment of the mortgage amount of Rs. 6,000/- to the respondents.
4. The respondents moved thisCourt in Regular Second Appeal No. 1259 of 1972 and as already stated, the learned single Judge set aside the decree passed by the District Judge and relegated the appellants to their original position as it was before the trial Court. The parties are once again before this Court at the instance of the present appellants.
5. It is of interest to note that the competence of the suit filed by the appellants was challenged by the respondent only on the ground that the suit could not lie in view of the decision of the Collector dated November 10, 1965, and it is this objection raised in the written statement, which necessitated the framing of issue No. 1 in this case. A general issue in regard to the objection regarding limitation was also framed as issue No. 7. The trial Court, however, discussed both these issues together and after a re'sume' of the facts in regard to the various applications filed before the Collector, came to the conclusion that as no suit had been filed either by Thambu, the original owner or his successors (the appellants) within a period of one year from the passing of the order of the Collector dated September 14, 1967, the present suit was not competent. The trial Court, therefore, travelled beyond the case set up by the respondents in their written statement in the sense that the respondents had never urged about the incompetence of the suit in view of the order of the Collector dated September 14, 1967. In fact, they had confined their objection only in regard to the order passed by the Collector on November 10, 1965. The order of the trial Court cannot, therefore, be sustained even on this ground. Since, however, the implications of the order of the Collector dated September 14, 1967, have been adjudged by the learned single Judge, we may examine the matter in reference to that order also.
6. The learned single Judge has held that the finding of the Collector in his order dated September 14, 1967, to the effect that the second application for redemption was not competent, was in substance a finding that there was no cause for proceeding further with the petition, as contemplated under Section 10 of the Act. It was also concluded that his finding could have been impugned by means of a suit filed under Section 12 ofthe Act and such a suit not having been filed by the mortgagors, the order of the Collector dated September 14, 1967, had become final resulting in the extinguishment of the proprietary rights of the mortgagor. The learned Judge relied upon the decision in Shiv Lal v. Chet Ram, (1970) 2 SCC 773 = (AIR 1971 SC 2342), for coming to the above conclusion. We, however, find that no such rule of law was laid down by the Supreme Court in the said case. The facts in that case were that the plaintiffs sought redemption of some mortgages in two separate suits. While considering the scope of Section 12 of the Act, it was held by their Lord-ships that this section merely provided that a summary order made under Sections 6, 7. 8, 9. 10 and 11 of the Act would become final unless the suit to establish the rights of the mortgagors is instituted within the prescribed period. It was also held that in view of Section 12 of the Act, the period of limitation fixed for redemption of mortgages could not be enlarged. The contention that a mortgagor whose application for redemption under Section 4 of the Act is dismissed, can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, was repelled. In the case in hand, as already noticed, the limitation for filing a suit for redemption of the mortgage under the ordinary law, has not run out so far. Shiv Lal's case (supra) would, therefore, be of no application to the present case. On the other hand, the learned counsel for the appellants has referred to Sheolal v. Sultan, AIR 1971 SC 93, which is an authority directly on the point as to whether it was at all necessary to challenge certain types of the orders passed by the Collector under the Act. It was held in this case that if a petition for redemption of mortgage was dismissed by the Collector under Section 9 of the Act, it is not the form of the order, but its substance which would determine as to whether it attracted the period of limitation prescribed under Article 14 of the Limitation Act. Their Lordships observed that 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, and such an order is not one which is required to be set aside. If we apply this test to the facts of the present case, there is no escape from the conclusion that theCollector passed no orders in regard to the merits of the case either while dismissing the first application on November 10, 1965, or later on by means of order dated September 14, 1967, passed on the second application. If we scan through the latter order (Exhibit P-3), it clearly emerges that the Collector refused to adjudicate upon the second application only on the ground that the dismissal of the first application on November 10, 1965, barred the filing of the second application under the Act. This cannot be termed as a decision on merits of the case, nor could it be said that any cloud had been raised on the title of the mortgagor arising out of the mortgage. The Collector while passing the order dated September 14, 1967, was, at the most, not permitting a summary remedy to the mortgagors under the Act, for redemption of the mortgage. Thus, viewed from this perspective, the finding of the learned District Judge in regard to the only contesting issue of limitation is quite correct. The order of the learned single Judge is, therefore, set aside and the judgment and decree passed by the District Judge on July 19, 1972, in favour of the appellants and against the respondents are restored.
7. In view of the see-saw of success and failure at various levels, we would leave the parties to bear their own costs throughout.