Chet Ram Thakur, J.
1. This appeal has arisen out of a suit filed by Bhag Singh and others against Chuha defendant for redemption of land measuring 23 bighas 16 biswas, as detailed out in the head note of the plaint. The facts may briefly be stated as follows :--
2. Sudama and Sadhu, who were own brothers, created a usufructuary mortgage of 71 bighas of their land for Rs. 100 in favour of Chuha, Gangu & Gokal in the month of Baisakh 1960 BK. On the death of Sudama, Sadhu inherited his entire estate and he became the sole mortgagor. Subsequently Sadhu also died leaving behind his three sons, Sarvshri Gobind, Bohra and Samandu. In the meanwhile Gangu and Gokal also died, it appears without issues and their succession also devolved on Chuha. Thus he also became the sole mortgagee. Gobind and Bohra sold the equity of redemption in res-peat of their 2/3rd share in favour of Achharu and Nand Lal, the sons of Chuha on 21-1-1958. The latter two redeemed their 2/3rd share. Thus Chuha was only a mortgagee with respect to 1/3rd share measuring 23 bighas 16 biswas. Samandu, whose 1/3rd share remained In mortgage died leaving behind the plaintiffs as his heirs; they, therefore, brought a suit for redemption of the land without payment of any mortgage money, as, according to them it was a usufructuary mortgage and the mortgagees had been taking the fruit of the land since 1960 BK. It was, therefore, contended that Chuha defendant was not entitled to recover more than double the money under the provisions of Debt Reduction Act and on that ground they prayed for a decree for redemption without payment of any money.
3. Chuha denied the mortgage, saying that he was the owner. It was denied that the provisions of the Debt Reduction Act were applicable to the case. It was further averred by him that Samandu had created a further charge on the property and the property could be redeemed only after the entire amount had been paid. It was also pleaded that Samandu had made an application for redemption in 1949 under the Redemption of Mortgages Act and that the application was dismissed; he did not file his suit within one year of the dismissal of the application and, therefore, the present suit was not maintainable and that the mortgage was more than 60 years old and as such the suit was time barred. It was also pleaded that Samandu and his two brothers, Gobind and Bohra had entered into an agreement with him on 27-12-1957, whereby they undertook to confer occupancy rights on him on receiving another sum of Rs. 100/- within one year of the execution of the agreement and on their failure to carry out their part of the agreement whatever rights they had in the land were to become extinct. Samandu failed to execute his part of the agreement and as such the plaintiff's right to redeem the mortgage had also become extinct and they were not entitled to maintain the suit. On these pleadings the Court framed the following issues :--
1. Did Sadhu and Sudama sons of Caitru mortgaged the land with possession with Gangu and Chuha sons of Kirpa for Rs. 100/- on 2nd Baisakh 1960 BK?
2. Are the plaintiffs entitled to get the land redeemed without any payment ?
3. Does the H. P. Debt Reduction Act apply to Bilaspur District and the present suit is governed by its provisions ?
4. Is the suit time barred ?
5. Was there any contract between Samandu, Gobind, Bohra and defendant No. 1 to grant occupancy right in the land in suit, within one year, in favour of Chuha ?
6. Are the plaintiffs debarred to claim redemption as Samandu failed to carry out his contract ?
7. Is there any other charge on the land in suit, if so, how much ?
8. If issue No. 5 is proved, does it act as clog on redemption ?
4. It was found by the trial Court that Sadhu and Sudama had mortgaged the suit land with possession with Gangu and Chuha in Baisakh 1960 BK, and that the plaintiffs were entitled to redeem the suit land without any payment; that the H. P. Debt Reduction Act was applicable to Bilaspur and that the suit was governed by its provisions; that the suit was within time; that Samandu and his brothers had entered into an agreement with Chuha, but Samandu did not fail to carry out his part of the agreement and that the agreement did not operate as a clog on redemption. In view of these findings on the issues, the suit was decreed. Against this judgment and decree the defendant went in appeal to the District Judge.
5. Before the learned District Judge, it was urged that the plaintiffs had failed to prove that the mortgage was created on 2nd Baisakh 1960 BK and that the mortgage was subsisting. The learned District Judge found that it was proved from the documentary evidence on the record that the mortgage was effected on the 2nd Baisakh 1960 BK for Rs. 100/-; that the plaintiff had filed the suit for redemption on 30th July, 1959 and, therefore, the suit was filed within the period of sixty years and that the mortgage was subsisting.
6. It was also argued before the learned District Judge that Samandu made an application for redemption of the mortgage under the Redemption of Mortgages Act and that the application was dismissed and the mortgagor failed to file the suit within one year of the dismissal of the application and as such the suit was not maintainable The learned District Judge repelled this contention also. The learned District Judge upheld the judgment and decree of the trial Court and dismissed the appeal.
7. In this appeal, the learned counsel for the appellant has confined his arguments only on the solitary point that the suit having not been filed for setting aside the order of the Collector within one year from the date of the dismissal of the application under the provisions of Redemption of Mortgages Act, 1913 (hereinafter called 'the Act'), was barred under the provisions of Section 12 of the Act. While disposing of this point, the learned District Judge observed that the application made by Samandu was dismissed in default and that it was not dismissed on merits and, therefore, the plaintiffs' suit will not be barred by the provisions of Redemption of Mortgages Act.
8. The learned counsel for the appellant has attacked this finding of the learned District Judge contending that under the provisions of the Act it is incumbent upon the party aggrieved against the order of the Collector to file a suit within one year as required under Article 14 of the Indian Limitation Act to set aside the order of the officer. If a party fails to file a suit within one year from the date of the order of the Collector, then the suit shall be barred. It is not necessary that the order must be an order on merits. In this connection he has drawn my attention to the various provisions of the Act and reliance is also placed on AIR 1925 Lah 385, Kura v. Ram Chand; AIR 1943 Lah 176 (FB), Tulsi Dass v. Diala Ram; (1971) 73 Pun LR (D.) 67, Mir Chand v. Devia & 1967 Lah LT 7 (Rev), Mana and Nandu v. Nikka.
9. Section 4 of the Act provides for a petition for redemption made by the mortgagor or other persons entitled to institute a suit for redemption before the Collector for an order directing that his mortgage be redeemed. Section 5 of the Act provides for summoning of the mortgagee. Section 6 lays down the procedure when the petitioner is absent and the mortgagee is present. According to this section the Collector shall, unless he adjourns the proceedings, make an order that the petition be dismissed unless the mortgagee admits the claim in which case the Collector shall make the order as provided therein. Section 7 lays down the procedure when the petitioner is present and the mortgagee is absent, In that case the Collector shall, unless he adjourns the proceedings, enquire in a summary manner the claim of the mortgagor for redemption and after doing so if the Collector is not satisfied that the petitioner is not entitled to redeem he shall dismiss the petition, and if the Collector is satisfied that the petitioner is entitled to redeem, then he shall make an order as provided under Section 6 (a), (b), (c) and (d) of the Act. Further, if the petitioner fails to make such deposit within the period fixed the Collector shall also dismiss the petition.
Section 8 lavs down the procedure when both parties are in attendance. Section 9 lays down the procedure in contentious cases. Section 10 provides for enquiry into objections raised by mortgagee and if on enquiry the Collector is of opinion that it bars redemption or has sufficient cause for not proceeding further with the petition he shall dismiss the petition, but if he is not of that opinion, he shall, unless he dismisses the petition under Section 11, make an order as laid down in Section 6 (a), (b), (c) and (d) of the Act. Section 11 provides for enquiry regarding sum due and if on enquiry regarding the sum due the Collector is is of opinion that the sum deposited is the sum rightly due under the mortgage he shall, unless he dismisses the petition under Section 10, make an order as laid down under Section 6 (a), (b), (c) and (d) of the Act and if he is of the opinion that a sum larger than the sum deposited should be deposited by the petitioner, he shall, unless he dismisses the petition under Section 10, fix a period not exceeding 30 days within which the petitioner shall deposit the difference and then the Collector shall make an order as laid down under Section 6 (a), (b), (c) and (d) of the Act, and if he fails to make the deposit the Collector shall dismiss the Petition. Section 12 reads as under :--
'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.'
It is on the basis of these provisions as supported by the aforesaid authorities that the learned counsel for the appel-lant contends that the suit of the plaintiff is barred as he failed to bring that suit within one year of the order of the Collector as required under Article 14 of the Indian Lim. Act. The order of the Collector dismissing the application made by the plaintiff on 9th July 1949 had, therefore, become final and conclusive.
10. The learned counsel for the respondents contends that the order of the Collector dismissing the application for default did not in any way affect the rights of the plaintiffs. The application was dismissed for default under Order 9, Rule 3, Civil P. C. as would be apparent from the perusal of the order, marked as Exhibit D. W.2/A. He has also drawn my attention to the provisions of the Act and has contended that there is no provision in this Act providing for such a contingency as to what would happen if both the parties i. e.. mortgagor-applicant and mortgagee are absent. The Act has provided as to what would happen when the mortgagor is present and the mortgagee is absent, or when the mortgagee is present and the mortgagor is absent and what would be the procedure when both the parties are present. But it has nowhere been provided as to what would happen when both the parties are absent. Further, it is only an order passed under Sections 6, 7, 8. 9, 10 and 11 of the Act, which shall become conclusive if not challenged by a suit filed within one year of the same; but it nowhere says that an order where both the parties were absent and the application had been dismissed on that account the order shall also become conclusive, if not challenged by a suit. His contention is that this order can be ignored by him and he could bring a suit to redeem the mortgage and that such a suit is not barred and reliance is also placed by him on AIR 1950 FC 1, Thota China Subba Rao v Mattapalli Raju; 1966 Cur LJ 537 (Punj); Ishar Das v. Arjan Singh; AIR 1929 Lah 513, Asa Ram v. Darba Mal and 1965 Cur LJ 633 = (AIR 1965 Punj 502), Dewan Chand v. Raghbir Singh.
11. Before dealing with the authorities it may be straightway pointed out here that there is nothing in the order Exhibit D. W. 2/A which in any way affects the rights of the plaintiffs. The rights of the plaintiffs have not been adjudicated upon by the Collector, but the petition was dismissed in default of the parties. The order, as translated, reads as under :
'Called out. None has appeared. Hence the file is dismissed under Order 9, Rule 3, Civil P. C.'
Order 9 of the Code of Civil Procedure provides for the appearance of the parties and consequences of the non-appearance. Rule 3 of Order 9 says, 'where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed'. Rule 4 provides that where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (subject to the Law of Limitation) bring a fresh suit or he may apply for an order to set the dismissal aside. Hence it is obvious that a second application or suit is not barred if the plaintiff does not choose to make an applicationfor setting aside the order of dismissal. But in case the suit is dismissed under Order 9, Rule 8, where the defendant is present and the plaintiff is absent and the defendant has not admitted the claim then in such a case a second suit is barred. In fact an order under Order 9. Rule 3 is not of any consequence. It does not decide the rights of the parties. Section 13 of the Act also bars a second petition in case of dismissal of a petition. Section 12 says that subject to the result of the suit, if any, brought consequent to any orders passed, as contemplated under Sections 6, 7, 8, 9, 10 and 11 of the Act, that order shall be conclusive. It also provides for setting aside an ex parte order or an order for dismissal of default of the petitioner under Section 6. From this it, therefore, follows that a mortgagor can make a fresh application, if he so requires, to avail of the summary remedy or he may file a regular civil suit for redemption under the ordinary law.
12. The further contention of the learned counsel for the respondent is that the present suit is not one for the setting aside of order of the Collector but is made to establish his right to the land and the suit is not at all governed by Article 14 of the Limitation Act. It is purely a suit for redemption, in other words a suit for possession. According to him the Collector did not decide anything when he dismissed the application for default. Therefore, in these circumstances it is wrong to say that the present suit brought by the plaintiff is filed to avoid or get rid of any order made by the Collector.
13. The Redemption of Mortgages Act provides a summary remedy to a mortgagor if he is entitled to institute a suit for redemption, to apply to the Collector that his mortgage be redeemed and he be put in possession Sections 6 and 7 also envisage a summary enquiry before the Collector chooses to dismiss the application or to make an order as contemplated under Clauses (a) to (d) of Section 6. As for the other Sections 8 to 11. they lay down the procedure that must be followed by the Collector when the parties are present and the case is contested, in case of objections enquiry to be made and then the Collector passes a final order as contemplated under Section 11. So these sections postulate a summary enquiry before any order is passed by the Collector under these sections. But there is no provision identical to Order 9, Rule 3 in the Act. so if both the parties are absent the question of any summary enquiry does not arise. So this application, as a matter of fact, was not dismissed after any enquiry. Further Section 12 does not require the suit to be filed within one year nor is there any particular time so specified. Article 14 of the Limitation Act, which is not equivalent to Article 100 of the new Act governs only a suit, which is in substance to set aside the order made by an officer of Government in his official capacity and it has got nothing to do with the suit which is merely to establish the right without requiring an order to be set aside. A perusal of this Article reveals that the period of one year is prescribed only for a suit to set aside an order of an officer of Government and cannot apply to a suit, which does not seek to apply for any setting aside of the said order. The present suit, as would be noticed, is simply to establish the plaintiffs' right in the land. A look at the order of the Collector would show that it decides nothing and, therefore, this order did not stand in the way of the present suit and the plaintiffs could file the suit to establish their right without seeking a relief for the avoidance of the order which was not contemplated under any of the sections under the Act. Section 12, as has already been set out above, says that any party aggrieved by an order made under Sections 6 to 11 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. But here there was no order as contemplated under any of these sections so as to become a conclusive order. Even without filing the suit the petitioner was not debarred from filing a fresh application.
14. In AIR 1925 Lah 385, the facts were that the predecessor-in-interest of the appellant made an application to the Collector under the Redemption of Mortgages Act for redemption of the mortgage but the application was dismissed on the ground that the mortgage had ceased to exist and redemption was barred. Inasmuch as no suit to set aside the order of the Collector was brought within one year of its date the Trial Court held the suit to redeem barred under Article 14 of the Indian Limitation Act although contrary to the Collector it found that the mortgage of 1827 was replaced by a fresh mortgage in 1878 i. e. less than sixty years before the suit.
Consequently the question before High Court was, whether a mortgagor's right to redeem, which would otherwise be within limitation, is barred, if the action is brought later than a year of the date of an order passed to the plaintiff's detriment by the Collector on an application under Punjab Act No. 2 of 1913. It was in view of these facts that it was held. 'A mortgagor's right to redeem, which would otherwise be within limitation, is barred if the action is brought later than a year of the date of an order passed to the plaintiff's detriment by the Collector on an application under the said Act. When an order passed under a special Act is declared by that Act to be conclusive, it cannot be ignored and no relief is open to the aggrieved party unless that order is set aside and the individual who takes advantage of a summary procedure must suffer its disadvantage as well as enjoy its benefits. The suit referred to in Section 12 of the Punjab Redemption of Mortgages Act is a suit to set aside the order of an officer of Government within Article 14. As the Collector had held in that suit that the mortgage had ceased to exist and redemption was barred, hence that order was to the detriment of the mortgagor and without having the same set aside within one year, a suit for redemption was barred.
15. In AIR 1943 Lah 176 (FB), the application of the mortgagor was rejected by the Collector on the ground that mortgage deed had a condition that the mortgage shall not be redeemable for 20 years and that the deed was executed on 22nd October 1910 and since the limitation had not been passed the application for redemption was premature. Again on 1.2th July, 1938 the successors-in-interest of the original mortgagor presented before the Assistant Collector another application under Section 4 of Act No. 2 of 1913 claiming redemption on payment of Rs. 600/-. The mortgagees resisted the application on two grounds; (1) that the second application cannot be presented under Act No. 2 of 1913. as laid down in Section 13 of the Act: and (2) that in any case the sum due was much more than Rs. 600/- Both these objections were over-ruled by the Assistant Collector holding that the former application had been rejected and not dismissed by his predecessor and, therefore, Section 13 of the Act was inapplicable. However, in respect of mortgagee's charge he found that it was Rs. 1959/- and passed an order for redemption on payment of that amount within one month of the service of the notice. Within one month from this order On 16th July 1939, a suit was filed by the sons of the original mortgagee for declaration that the order of the Assistant Collector, dated 31st March 1939 allowing redemption on payment of Rs. 1959/- was ultra vires, illegal and void and in the alternative for declaration that the land was not liable to be redeemed without payment of much larger sum than allowed by the Assistant Collector.
One of the claims in that suit was founded on the plea that the mortgagor's application under Section 4 of Redemption of Mortgages Act having been dismissed by the Assistant Collector on 14th August 1929, and no suit under Section 12 having been brought within one year from the date of order to establish his right in respect of the mortgage, the order had become conclusive and the mortgagor's right to redeem had extinguished at the expiry of that period. The defendant mortgagor's reply was that the first application by him made in 1929 was not really an application under the Act as it had been filed before the right to redeem had accrued and, therefore, it was not necessary for him to bring a suit under Section 12 to have that order set aside within one year from its rejection. According to him the only valid application for redemption made under the Act was filed by him on 2nd July 1938 and the order passed by the Assistant Collector on 31st March 1938 on that application was legal and correct. The trial Court held that the Assistant Collector had rejected the application as incompetent and not dismissed it on merits. Section 13 did not apply and the application made in 1939 must be taken to be the only application made under the Act.
The same point was reagitated before the District Judge, who also repelled the contention and held that the application for redemption made in 1929 was premature and incompetent. The application was really rejected as there was no cause of action at that time, and on appeal to the High Court the case was referred to the Full Bench in view of conflicting decisions and the points referred for decision by the Full Bench were; (1) whether an application under Section 4 of the Act for redemption of mortgage cannot be treated as an application under the Act, if it is rejected or dismissed by the Collector on the ground that it is premature and (2) whether the orders contemplated under Section 12 of the Act were those orders which are made on merits of the case or covered all orders irrespective of the fact whether they disposed of any question on merits or not. The first question was answered in the affirmative and on the second question the answer was that the orders contemplated under Section 12 are not confined to those orders which are made on the merits of the case but cover other orders passed under Sections 6 to 11 according to the nature and character, regard being had to the substance of the order and not merely to its form. Further it was held that whereas in the case the Collector had dismissed the petition on the ground that principal money was not being payable the omission to sue under Section 12 Within the period prescribed by Article 14 Limitation Act does not bar the right of the mortgagor to redeem the mortgage.
16. From the aforesaid authority it would have been noticed that the suit not having been filed within pne year to set aside an order passed in terms of Sections 6 to 11 shall be time barred and the order passed by the Collector under any of the Sections shall become conclusive. Here in the present case the order passed by the Collector dismissing the application for default of the parties does not fall within the purview of any of the Sections 6 to 11 of the Act so as to make it incumbent upon the mortgagor to file a suit to set aside that order of the Collector within one year as required under Section 14 of the Limitation Act. Since there was no order of the Collector which was detrimental to the interest of the mortgagor-plaintiff, it was not at all necessary for him to have avoided that order by a suit within one year of the dismissal of that application. He had his independent right to file a suit in the Court under the ordinary law.
17. From the perusal of the authority contained in AIR 1943 Lah 176 (FB), it is further clear that the Court has to look to the substance of the order and not merely to its form. The substance of order. Exhibit D.2/A is that the application brought by the mortgagor was dismissed for default of the parties and as such no detrimental order had been passed, which required the setting of the same aside by the mortgagor. He could make a fresh application if he so desired or he could file a suit under the ordinary law. Hence in my view the authorities relied upon by the learned counsel for the appellant do not assist him because of dissimilar circumstances of the case.
18. Support is also sought from (1971) 72 Pun LR (D) 67. In this case also it was held, 'that whenever the Collector makes an order which comes within the ambit of Sections 6 to 11 of the Act. regard being had to the substance of the order and not merely to its form, the order is one contemplated under Section 12 of the Act and if that order adversely affects the rights of the parties in respect of the mortgage the only remedy of the aggrieved party is to establish his or her rights by filing a suit for which the time limit prescribed under Article 14 of the Limitation Act is one year from the date of the order'. So this authority also says that if the order made by the Collector comes within the ambit of Sections 6 to 11 then in that case a suit to set aside that order of Collector has to be filed within one year, failing which the order shall become conclusive. But the order in the Instant case did not fall within the ambit of these sections and the rights of the plaintiff were not adversely affected by the order of dismissal of his application by the Collector in 1949. which made it necessary for him to have the order of the Collector set aside within the period of one year, failing which the order was to become conclusive. Since nothing had been decided bv the Collector, so the question of the order becoming conclusive also did not arise at all. The effect of the dismissal of the application for the absence of the parties was as if no application had been made by the mortgagor and if he had limitation, he could bring a fresh application or he could file a suit under the ordinary law which he has done.
19. Reliance is also placed on1967 Lah LT 7, which is also to thesame effect.
20. On the contrary the learned counsel has relied on 1966 Cur LJ 537 (Punj) wherein the Collector refused to adjudicate upon the claim of the parties, on the application of the mortgagor for redemption as it involved some complicated questions for decision by the Collector in the summary proceedings before him. He, therefore, ordered that it was not possible to allow redemption of the land in favour of applicant and dismissed the application.
21. The mortgagor filed a suit for redemption in the Civil Court where the mortgagee-defendant pleaded that the mortgagors had previously put in an application before the Collector for redemption of mortgage under the provisions of Redemption of Mortgages Act, which was dismissed by him on 9th January 1961, and that the suit was lodged after the expiry of a period of one year from this date and, therefore it was barred by time. This point of limitation was decided against the defendant and the plaintiff was allowed a decree for redemption of the land in suit. An appeal to the District Judge was also unsuccessful and then an appeal was filed in the High Court, where, in view of the aforesaid facts it was held that the Collector could not be said to have held an enquiry as provided in Section 9 (b) of the Redemption of Mortgages Act, and if he had done so he would have passed an order as provided in Section 11 of the said Act which had admittedly not been done. The application was dismissed summarily apparently for the reason that the matter was too complicated for the Collector to decide in the summary proceedings and thereby he declined to exercise his jurisdiction. Thus the order passed by him was not of the nature which could stand in the way of the plaintiff-mortgagor to obtain possession of the land by redemption of the mortgage in a civil court. Hence according to him the appellant was not justified in maintaining that the suit was barred by limitation because It was not filed within one year from the date of the order of the Collector.
22. In 1965 Cur. LJ 633 = (AIR 1965 Punj 502), also it was laid down that the Collector obviously decided nothing against the plaintiff and on the other hand directed that the matter be settled in civil Court. No suit to set aside the Collector's order was, therefore, necessary and the present suit must be considered a simple suit to establish the plaintiff's right in the land. It is not, therefore, a suit under Article 14 of the Limitation Act. Further it was held that a consideration of the language of Article 14 of the Limitation Act leaves little doubt that the period of one year is prescribed only for a suit to set aside an order of an officer of Government and could not apply to suit which does not seek the setting aside of any such order.
23. After consideration of these authorities produced by the parties both for and against, I am of the view that the authorities cited by the appellant are not of any assistance to him in view of the peculiar circumstances of the case. The Collector decided nothing which may be considered adverse to the interest of the plaintiff-mortgagor so as to require him to have that order set aside within the period of one year as required under Section 14 of the Limitation Act. It was a simple case to establish his rights in the land which would not be governed by Article 14 of the Limitation Act, which provided limitation for setting aside of the order of an officer of the Government. This Article would have come into play only if the order passed by the Collector would have fallen within the ambit of Sections 6 to 11 of the Act; but the order passed and as contained in Exhibit D. W. 2/A is one which does not fall under any one of the Sections 6 to 11 of the Act and, therefore, the suit which has been brought by the plaintiff to establish his rights in the land cannot be said to be governed under the provisions of Article 14 because it is not his suit to set aside any order of the Collector which had in any way adversely affected his rights or interest in the land or stood in his way. So for that matter, I am of the view that the contention put forth by the learned counsel for the appellant carries no force and the contention of the learned counsel for the respondent that the order passed by the Collector does not fall within the ambit of any of the Sections 6 to 11 of the Act so as to attract the applicability of Article 14 of the Act appears to be correct and for what I have stated above, the appeal fails and is hereby dismissed. However, I leave the parties to bear their own costs, in view of the case having been decided on a legal point.