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Ram Chand Wasanda Ram Arora Vs. Notam Das Gowardhan Das Arora - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 112 of 1964
Judge
Reported inAIR1965P& H112
ActsCode of Civil Procedure (CPC), 1908 - Sections 7 and 8
AppellantRam Chand Wasanda Ram Arora
RespondentNotam Das Gowardhan Das Arora
Cases Referred and Munshi Ram v. Nauranga
Excerpt:
.....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..........that the mortgage amount was payable by 1st june 1960, failing which the mortgage was to ripen to sale. a notice of this application was served on ram chand petitioner on the 11th of september 1963, consequent upon which ram chand raised some objections. the district judge had framed the following three issues at first and the matter was then posted for evidence and arguments:1. is the notice given to the respondent invalid for not mentioning section 7 of the regulation 17 of 1806 and for not giving full particulars of the property therein? 2. does regulation 17 of 1806 not apply to agricultural land? 3. is the mortgage deed void since it was executed during the consolidation proceedings?notan das thereafter filed a further application for amendment and an additional issue was framed to.....
Judgment:
ORDER

1. This is a revision against an order of the District Judge, Hissar, dated the 22nd November, 1963, whereby an application filed by respondent Notan Dass mortgagee under S. 7 of Regulation 17 of 1806 was accepted and a notice to redeem the mortgaged land was given to the petitioner. Notan Dass respondent made an application under the aforesaid Regulation 17 of 1806 alleging that the petitioner here Ram Chand had mortgaged with possession 12 Bighas 6 Biswas of land for consideration of Rs. 1,200/- on the 25th of November 1958, and although the mortgaged was with possession the same had not been transferred. It was further alleged that the mortgage amount was payable by 1st June 1960, failing which the mortgage was to ripen to sale. A notice of this application was served on Ram Chand petitioner on the 11th of September 1963, consequent upon which Ram Chand raised some objections. The District Judge had framed the following three issues at first and the matter was then posted for evidence and arguments:

1. Is the notice given to the respondent invalid for not mentioning section 7 of the Regulation 17 of 1806 and for not giving full particulars of the property therein?

2. Does Regulation 17 of 1806 not apply to agricultural land?

3. Is the mortgage deed void since it was executed during the consolidation proceedings?

Notan Das thereafter filed a further application for amendment and an additional issue was framed to the following terms:

'Are proceedings under the Regulation 17 of 1806 ministerial and objections as put forward by the respondent are not entertainable and cannot be gone into these proceedings?'

After hearing the parties it was held by the learned District Judge that he was not entitled to go into the various matters raised by the petitioner Ram Chand and consequently, as contemplated by S. 8 of Regulations 17 of 1806, he gave a notice to the petitioner to redeem the land within one year from the date of notice to him, i.e. 11th of September, 1963 otherwise the mortgage would be finally foreclosed and the conditional sale would become conclusive.

(2) Aggrieved by this order, the petitioner has come up in revision.

(3) The learned District Judge has held, relying upon Ratan Das v. Mt. Guran, AIR 1918 Lah 198 and Ahsan Elahi v. Alla-ud-Din, AIR 1938 Lah 809 that the proceedings under the said Regulation are purely ministerial and the purpose is merely to give a warning to a mortgagor of the impending disappearance of his right to redeem the mortgage, and that unless he redeemed the mortgage within a year the conditional sale would become conclusive.

(4) Section 8 lays down the procedure to be adopted by a mortgage or conditional vendee, who is desirous to foreclose a mortgage or render conditional ale absolute. It provides that where a receiver or holder of a deed of mortgage and conditional sale, as described in section 7 of the said Regulation, is desirous of foreclosing the mortgage and rendering the sale conclusive on the expiration of the stipulated period or before the sum is repaid, he has to make an application to, in the present case, the District Court. It is further provided that on receiving such a written application the District Judge shall furnish to the mortgagor as soon as the same time notify to him by a parwana that if the mortgagor does not redeem the property mortgaged in the manner provided for by S. 7 within one year from the date of the notification the mortgagor will be finally foreclosed and the conditional sale will become conclusive and absolute.

(5) Section 7 of the Regulation lays down the procedure and conditions which entitle a mortgagor or his representatives to redeem before final foreclosure after application by mortgagee for foreclosure, made under section 8 if the mortgagor wishes to redeem the mortgage, then he must take steps and pay the amount within one year after a notice has been served on him under section 8. A reading of these two section suggests to me that what is contemplated by S. 8 is merely this that in case where a mortgage is not redeemed, the Court, on an application made, notifies mortgagor and gives him a warning that unless he acts in accordance with a section 8 of the Act his right to redeem the mortgage will disappear and the conditional sale would become absolute. This, in fact, is what has been laid in AIR 1918 Lah 198 and AIR 1938 Lah 809.

(6) Learned counsel for the petitioner has endeavoured to distinguish the two authorities mentioned above, as well as Gokal Chand v. Sundar Singh, AIR 1949 EP 282 which has also been relied upon by the learned District Judge. He has further relied on Nand Kishore v. Narain Singh. AIR 1924 Lah 471; Sochet Singh v Dial Singh 46 Pun Re 1907; Behari Lal v. Balmokand, 89 Ind Cas 475: (AIR 1926 Lah 112) and Munshi Ram v. Nauranga, 72 Ind Cas 575: (AIR 1924 Lah 176) and has contended that when objections are raised by a mortgagor on a services of notice as contemplated under S. 8 of the Regulation, then the Court has to go into the matter and adjudicate upon it. However it may pointed out that nearly all the authorities relied upon by the learned counsel for the petitioner arose out of suits filed in a civil Court after a notice under S. 8 had been served on the mortgagor. The jurisdiction exercised, therefore, in these last mentioned cases, was under the Code of Civil Procedure on regular suits being filed after notice under S. 8 of the Regulation has been served on the mortgagor. In my view, therefore, these authorities do not help the learned counsel for the petitioner.

(7) Of course, there is a condition precedent to the issue of a notice under S. 8 and that condition is that there must be either a receiver of a holder of a deed of mortgage and conditional sale before the District Judge can exercise jurisdiction under S. 8.

(8) That there was a deed of mortgage and conditional sale admits of no doubt and what Ram Chand mortgagor, petitioner herein, mainly contended was the Regulation 17 of 1806 did not apply to agricultural land and the mortgage deed was void since it was executed during consolidation proceedings. In my view, these are not matters which the learned district Judge could adjudicate upon when exercising jurisdiction under S. 8 of the Regulation.

(9) In view of what I have mentioned above this petition fails and is dismissed with costs.

(10) Petition dismissed.


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