1. This is a plaintiff's appeal against an appellate decree of the Senior Subordinate Judge, of Hissar, affirming the decree of the trial Court which dismissed the plaintiff's suit.
2. The defendants or their predecessors mortgaged the land in dispute for the first time on the 20th of July, 1896, and subsequently twice before the year 1901. It is alleged that there were two further mortgages effected of the property which are after the year 1901. The defendants applied to the Special Collector for restitution under the Punjab Restitution of Mortgaged Lands Act, 1938. On the 18th of February, 1937, while the proceedings were pending, the plaintiff brought a suit for declaration that the proceedings before the Special Collector were 'ultra vires' and for issue of an injunction restraining the defendants from proceeding with the same. As I have said, both the Courts below have agreed in dismissing the suit.
3. Before me, Mr. Salooja has submitted, firstly, that the defendants have no right of redemption left because of the decree of the year 1915, and he particularly relied on the following words of the decree:
'If payment is not made within six monthsfrom date the plaintiff shall be debarredfrom all rights to redeem the same and the mortgaged property shall be sold unless the defendant agrees to retain possession in lieu of the amount found due.'
This is a wholly illegally drawn up decree. The words which have been used are no doubt there in Order XXXIV Rule 7, Civil P. C., but that only contemplates preliminary decrees. Following the judgment of Campbell, J., in 'SUNKAR v. JARU', A. I. R. 1923 Lah 680, I am of the opinion that when a preliminary decree in a redemption suit provides that if the payment is not made by a certain date the plaintiff shall forfeit his right of redemption, such a decree is illegal and the mortgage does not come to an end and a second suit can be brought for redemption as the right to redeem is not extinguished by the preliminary decree.
4. It was then submitted by Mr. Salooja that the garden which was the land in dispute is not land within the meaning of the word as used in the Punjab Restitution of Mortgaged Lands Act. With this submission I am unable to agree. The definition of the land as given in Section 3 of that Act means land let for agricultural purposes or purposes subservient to agriculture or for pasture and it cannot be said that the land on which fruit-bearing trees are growing is not land within the meaning of the definition.
5. With regard to those mortgages which are after 1901, no decision can be given at this stage and it will be open to the plaintiff to agitate his rights under those mortgages it there is any infringement by the Special Collector.
6. In the result, this appeal fails and is accordingly dismissed with costs.