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Birbal and ors. Vs. Harlal Sadasukh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 548 of 1952
Judge
Reported inAIR1953P& H252
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 4 and 9(2); ;Limitation Act, 1908 - Sections 5 - Schedule - Article 171; Punjab Redemption of Mortgages Act, 1913 - Sections 12
AppellantBirbal and ors.
RespondentHarlal Sadasukh and ors.
Appellant Advocate F.C. Mittal and; Satish Chundar Mital, Advs.
Respondent Advocate P.C. Pandit and; Anand Mohan Suri, Advs.
Disposition Appeal dismissed
Cases ReferredBrij Indar Singh v. Kanshi Ram
Excerpt:
.....party was entitled to pursue under law had failed and so the order of redemption stood good as far as the defendants were concerned. now ignorance of the death of a party is a very good ground for not moving the court to bring his legal representatives on record, for a person cannot think of making an application in this behalf unless he knows that the party is dead. 6. on the merits the appeal must fail......one of the defendants died on 28-7-1951 and no attempt was made by the plaintiff to bring his legal representatives on record. the decree followed on 29-12-1951 as i have already mentioned above and then an appeal was filed by the mortgagee-defendants including the legal representatives of surja, namely, his sons and widow. this appeal was filed on 29-1-1952, and one of the grounds taken up was that the decree was a nullity inasmuch as it had been passed against a dead person. the custodian filed a separate appeal. this appeal was filed on 6-2-1952. the plaintiff now made an application to bring the legal representatives of surja, on record end also prayed that the abatement of the suit, if any, be set aside. this application was made on 7-4-1952 i.e., more than eight months after.....
Judgment:

Khosla, J.

1. This second appeal arises out of a suit by Hartal plaintiff-respondent for the possession of 227 'Bighas' 11 'Biswas' of land. The plaintiff also sought a declaration to the effect that an order passed by the Collector on 1-4-1950 was invalid. The facts which have given rise to this appeal are briefly as follows.

2. Ghayas-ud-Din and Siraj-ud-Din, two Muslims, were originally owners of the land in dispute. They mortgaged this land with possession to defendants 1 to 3 and the father of defendants 4 and 5 on 25-5-1945 for a sum of Rs. 6,000/-. Possession was made over to the mortgagees. A little later, on 21-2-1946, the owners executed a lease deed in favour of the plaintiff for a sum of Rs. 10,000/-. The lease was a perpetual one and the deed was registered. Out of the total consideration Rs. 5,000/- were paid by the plaintiff in cash and the remaining Rs. 6,000/- were left in deposit for payment to the previous mortgagees, namely defendants 1 to 5. The lease deed gave the plaintiff the right to redeem the propsrty from the mortgagees. In order to give effect to this term the plaintiff made an application to the Collector on 22-4-1949 for the redemption of this land under the Redemption of Mortgages Act. The owners Ghayas-ud-Din and Siraj-ud-Din had, in the meantime, left India on the partition of the country and the property vested in the Custodian as evacuee property.

While this application of the plaintiff was pending before the Collector an Ordinance was passed on 25-7-1949 and this Ordinance was later succeeded by Act 36 of 1949 whereby all leases effected by evacuees were to be considered as having terminated with effect from 25-7-1949. Either in ignorance of this provision of the law or for some other reason the Collector passed an order of redemption in favour of the plaintiff on 5-10-1949. It is clear that the legal position was never placed before the Collector. The Custodian, however, made an application to the Collector for the review of his previous order and the Act whereby the losses made by evacuee were terminated was relied upon by the Custodian. The Collector with the permission of his superior reviewed his previous order and on 1-4-1950 set aside the order of redemption passed by him. The Collector apparently acted under the provisions of the Punjab Land Tenancy Act which gives power to the Collector to review his orders in certain conditions.

The mortgagees had in the meantime filed a suit under Section 13 of the Redemption of Mortgages Act. This suit was dismissed on 2-6-1950. Therefore at this stage the net result was that the remedy which the aggrieved party was entitled to pursue under law had failed and so the order of redemption stood good as far as the defendants were concerned. The Collector had, however, reviewed his order at the instance of the Custodian and the plaintiff was held not entitled to redeem the land. The plaintiff then filed the present suit on 23-11-1950 for a declaration that the order of the Collector reviewing the previous order was invalid as it was not warranted by law and he also prayed for possession of the property which had been ordered to be redeemed by him. This suit was decreed on 29-12-1951 but a further complication had in the meantime arisen. While the suit was pending, Surja one of the defendants died on 28-7-1951 and no attempt was made by the plaintiff to bring his legal representatives on record.

The decree followed on 29-12-1951 as I have already mentioned above and then an appeal was filed by the mortgagee-defendants including the legal representatives of Surja, namely, his sons and widow. This appeal was filed on 29-1-1952, and one of the grounds taken up was that the decree was a nullity inasmuch as it had been passed against a dead person. The Custodian filed a separate appeal. This appeal was filed on 6-2-1952. The plaintiff now made an application to bring the legal representatives of Surja, on record end also prayed that the abatement of the suit, if any, be set aside. This application was made on 7-4-1952 i.e., more than eight months after Surja's death. The District Judge made an enquiry into the questions whether Surja had died on the date alleged and whether the abatement should be set aside. He considered the pleas of the parties and also took their statements on oath and then he framed the following two issues :

'1. Whether Surja one of the defendant-mortgagees died on 28-7-1951 and what is the effect of non-impleading his legal representatives within time on the present appeal?

2. If it be held that the suit had abated in the trial Court because Surja's legal representatives were not impleaded within time then is that abatement liable to be set aside and can this Court set aside the abatement? The issues were framed on 2-3-1952.' Parties apparently did not ask for opportunity to produce evidence and the District Judge adjourned the case to a future date for hearing arguments. Arguments were heard and the learned District Judge gave his decision whereby he set aside the abatement, allowed the legal representatives of Surja to be brought on record, and proceeded to decide the appeal on merits after coming to the conclusion that it was unnecessary to remit the case to the lower Court for further proceedings from the stage at which Surja's death had taken place. On merits the learned District Judge found that there was no force in the appeal and that the order of the Collector reviewing his previous order was illegal as it was not warranted by law and so the lower Court's decree in favour of the plaintiff was allowed to stand.

Against this order the defendants have come up in appeal to this Court and on their behalf two points were urged before us one that the effect of Surja's death was that the suit abated and the decree against the dead person being a nullity was liable to be set aside, it was also contended that the District Judge should not have set aside the abatement because there was not sufficient ground for extending limitation under Section 5 of the Limitation Act, and in any event the learned District Judge should have remitted the case to the Senior Subordinate Judge with the direction that proceedings be continued from the stage at which Surja died. In the second place, it was urged that the order of the Collector reviewing his previous order was not invalid and that therefore the plaintiff was not entitled to the decree awarded in his favour.

3. With regard to the question of abatement it is clear that abatement can be set aside even after the statutory period of CO days Ms expired. Abatement takes place 90 days after the death of the defendant or respondent. So the opposite party is allowed a period of 150 days in which to apply for setting aside the abatement, but if for some reason he cannot move the Court in this respect he is entitled to extrusion under Section 5 of the Limitation Act. The effect of abatement is not that a decree against, a dead person is a nullity for all purposes but that the decree can be set aside and the legal representatives given an opportunity of representing their case before the Court. In this case the first point to consider is whether there was sufficient ground for not making an application within the statutory period of 150 days. The plaintiff's contention was that he did not know of Surja's death. He has stated this on oath and this statement was accepted by the learned District Judge.

Now ignorance of the death of a party is a very good ground for not moving the Court to bring his legal representatives on record, for a person cannot think of making an application in this behalf unless he knows that the party is dead. The defendants did not inform the Court and Surja's counsel continued to appear on his behalf. The plaintiff stated on oath that he did not know of Surja's death until much later. In the circumstances it seems to me that the plaintiff has shown sufficient cause for not making the application in time, and the learned District Judge was justified in extending limitation in this respect.

4. The second point to consider is what is the procedure to be adopted in a case of this typo. Abatement having been set aside, parties are restored to their original position at the stage of the proceedings when Surja's death took place, and the normal course would be to remit the case to the trial Court with a direction that the proceedings be continued from that stage. But this course need be adopted only if the legal representatives of the deceased have been prejudiced in any way. In the present case, we find that Surja died on 28-7-1951. After this date no evidence was taken and the only proceedings which took place were the address of arguments by counsel, and the District Judge has found and rightly so that the decision of the case would not have altered in a.ny way had Surja's legal representatives been brought on the record before the decree was passed in favour of the plaintiff.

The learned District Judge has referred to a decision of the Lahore High Court reported as -- 'Tota Bam v. Kundan', AIR 1928 Lah 784 (A), in which the facts were almost exactiy similar to the facts of the case before us. In that case Chuni, one of the defendants, died and his legal representatives were not brought on record. After Chuni's death some evidence on the question of waiver by the plaintiff was recorded and then a decree was passed in favour of the plaintiff. The defendants objected and among the defendants were the legal representatives of Chuni.

The same contentions were raised as have beenraised before us in tha present case, and a Division Bench of the Lahore High Court held thatChuni's legal representatives could have beenbrought on record after the expiry of the periodof limitation, and since the plaintiff had givenup tha question of waiver there was no need toremit the case to the trial Court as the decisionof the trial Court would not have altered in anyway even if Chuni's legal representatives hadbeen given the opportunity of putting forwardtheir defence, and the appeal dismissed. It wasalso held in a Privy Council csse reported as --'Brij Indar Singh v. Kanshi Ram', AIR 1917 PC156 (B), that once the representatives of a deceased party are brought on record for one purpose they must be deemed to have been broughton record for all purposes, and therefore in thepresent case when the legal representatives ofSurja are brought on record at the stage of theappeal they must be deemed to have beenbrought on record at the stage of the suit alsoThis will be so in all cases where no prejudiceto a party has been caused.

5. For these reasons I would hold that the learned District Judge was right in allowing the legal representatives of Surja to be brought on record.

6. On the merits the appeal must fail. The' plaintiff made an application under the Redemption of Mortgages Act. He was entitled to do so. He claimed to have the rjght to redeem and this claim was to be enquired into and adjudicated upon in a summary manner laid down in the Redemption of Mortgages Act, The Collector did make an enquiry into it and ordered redemption. The only way of avoiding this order was by having recourse to the provisions of Section 12 which says:

'Any party aggrieved by an order made under Sections 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.....'

Therefore the order of the Collector allowing redemption must be considered conclusive unless it is set aside by a suit brought by any party aggrieved by that order. Such a suit was brought by the defendants but the suit was dismissed on 2-6-1950 as stated above and the order of the Collector must therefore stand as a final order upon the question of the right to redeem the land in dispute. The Collector has not been given any power to review his order. It is not suggested that the provisions of the Civil Procedure Code apply to proceedings under the Redemption of Mortgages Act. This Act is complete in itself and lays down the procedure to be adopted by the Collector in dealing with the matters coming before him. The procedure is borrowed to some extent from the Punjab Tenancy Act, and Sections 79, 85, 86, 87, E9, 90, 91, 92 and 101 of that Act have been applied to the proceedings under this Act. Section 32 of the Punjab Tenancy Act confers upon the Collector the power to review his orders in certain circumstances. That section however, has not been imported into the Redemption of Mortgages Act.

Revenue Courts do not possess inherent power of reviewing their judgments. Such a power has been conferred on the civil Courts by the Civil Procedure Code. No such power vests to Criminal Courts. Revenue Courts have power to review their judgments under Section 82 of the Punjab Tenancy Act. That section not having been applied to proceedings under the Redemption of Mortgages Act, a Collector when he is hearing an application for the redemption of land in a summary manner provided by this Act has no power to review his orders, and the only way in which these orders can be avoided is by having recourse to the provisions of Section 12. Therefore, it is clear that the order of the Collector dated 1-4-1950 whereby he reviewed his previous order is without jurisdiction and invalid. The Courts below were therefore right in awarding a decree to the plaintiff.

7. The Custodian is a party to these proceedings and the question might arise at some future time whether his interests have also been affected and finally adjudicated upon in this suit. This is a matter upon which I do not choose to make any pronouncement at this stage. The dispute in the present proceedings is entirely between the plaintiff, who claims to have a right to redeem the mortgage, and the mortgagees. As to whether the lease in the plaintiff's favour can or cannot be avoided by the Custodian is a matter which was not considered in the present suit and therefore we need not express any opinion upon it.

8. The appeal therefore fails and is dismissed, but in the circumstances of the case I would leave the parties to bear their own costs as far as this Court is concerned.

Soni, J.

9. I agree.


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