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Gohd Singh and ors. Vs. Teja Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 900 of 1957
Judge
Reported inAIR1965P& H224
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 8; Transfer of Property Act - Sections 91
AppellantGohd Singh and ors.
RespondentTeja Singh and ors.
Cases Referred and Norendar Narain Singh v. Dwarka Lal
Excerpt:
.....high court. it has not made any provision 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..........of the trial court decreeing the plaintiffs' suit. the plaintiffs are some of proprietors of patti bhura who brought a suit under o. 1, r. 8 under the code of civil procedure for redemption of the mortgage of the land in dispute in favour of successors-in-interest of the original mortgage lehna singh. on the 15th of december, 1900, jawand singh mortgaged the land in dispute to secure a sum of rs. 120 in favour of lehna singh. later on lehna singh sold his mortgagee rights to bhup singh and others. the respondents are the successors-in-interest of bhup singh and other. on the death of jawand singh, his estate devolved on patti bhura became the owner of the equity of redemption of the land in dispute and that is how the present suit was brought by some of the proprietors of patti.....
Judgment:

(1) This second appeal is directed against the decision of the Senior Subordinate Judge, Amritsar, reversing on appeal the decision of the trial Court decreeing the plaintiffs' suit. The plaintiffs are some of proprietors of Patti Bhura who brought a suit under O. 1, R. 8 under the Code of Civil Procedure for redemption of the mortgage of the land in dispute in favour of successors-in-interest of the original mortgage Lehna Singh. On the 15th of December, 1900, Jawand Singh mortgaged the land in dispute to secure a sum of Rs. 120 in favour of Lehna Singh. Later on Lehna Singh sold his mortgagee rights to Bhup Singh and others. The respondents are the successors-in-interest of Bhup Singh and other. On the death of Jawand Singh, his estate devolved on Patti Bhura became the owner of the equity of redemption of the land in dispute and that is how the present suit was brought by some of the proprietors of Patti Bhura under O. 1 R. 8 for redemption of the land in dispute.

The mortgagees raised a number of pleas, namely, that the mortgage was not subsisting, that the plaintiffs could not sue for redemption of the whole land, that the plaintiffs were at owners of Patti Bhura, that the redemption could not be granted on payment of Rs. 120 alone and that the plaintiffs could not bring a suit under O. 1, R. 8. All these contentions were negatived by the trial Court with the result that the plaintiff's suit was decreed. Against this decision an appeal was taken by the defendants (Successors-in-interest of the original mortgagee) to the Senior Subordinate Judge who in his judgment, which is wholly incomprehensible, has allowed the appeal and dismissed the suit. In the first instance the learned Senior Subordinate Judge came to the conclusion that the suit for redemption under O. 1., R. 8 was not maintainable. The other ground which prevailed with him was that the integrity of the mortgage was stated to have been broken by the fact that some of the defendants were also co-shares in Patti Bhura and the interests of the mortgagor and mortgagee had vested in the same individual and part of the mortgage had become extinct. It is against this decision that the present second appeal has been referred by the proprietors of Patti Bhura.

(2) Mr. Roop Chand, learned counsel for the respondents raised a preliminary objection that the appeal was barred by time because when the appeal was filed it was deficiently stamped. It is not disputed that the deficiency in stamp occurred because of the change in law which came about after the suit had been decided and before the appeal was filed. In this situation, as observed by their Lord ships of the Supreme Court in State of Bombay v. Supreme General Films Exchange, Ltd., AIR 1960 SC 980, the Court-fee is leviable under the old rate unless the amendment has been specifically made retrospective. Therefore there is no substance in the preliminary objections and the same is repelled.

(3) It is not necessary for me to examine the question whether the suit under O. 1, R. 8 is maintainable because in my view any one of the co-mortgagors can redeem the entire of the mortgage is broken will be of no consequence. In this connection reference may be made to a direct decision of this Court in Pal Singh v. Attar Singh, AIR 1954 Punj 81. Reference may also be usefully made to the decision of the Privy Council in Mirza Yadali Beg v. Tukaram, AIR 1921 PC 125 and Norendar Narain Singh v. Dwarka Lal ILR 3 Cal 397.

(4) The matter admits of no doubt in view of the provisions S. 91 of the Transfer of Property Act which permits one of the co-mortgagors to redeem the entire mortgage. In this view of the matter the decision of the learned Senior Subordinate Judge is wholly erroneous and must therefore be set aside. I accordingly allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. There will be no order as to costs in this Court.

(5) Appeal allowed.


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