A suit for redemption is not a suit in respect of rights or interest in the land and it is also not a suit or a proceeding for declaration or adjudication of any other right in regard to which proceedings can be taken under the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

1. This is a plaintiffs application against the order dated 21-12-1979 passed in Title Suit No. 210 of 1968 by which the court below has held that the suit had abated under the provisions of Sec. 4 (c), Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act).

2. The petitioner instituted a suit for redemption in respect of 11 Bighas 7 kathas and 7 dhurs after depositing the mortgage money in court under the provisions of Section 83, T. P. Act. This suit was numbered as Title Suit No. 210 of 1968. According to the petitioner, defendants 1, and 2 did not agree to receive the mortgage money and thereafter the petitioner deposited the same in the court and obtained a decree in Miscellaneous Case No. 89 of 1967 filed under Section 83, T. P. Act. It is thereafter that the present suit was instituted by the petitioner when the opposite party did not withdraw the aforesaid mortgage money.

3. Admittedly, the consolidation proceedings have started in the area where the suit land is situate. Even though opposite party No. 2 has not challenged the petitioners right of redemption, he filed a petition to the effect that the suit had abated, under the provisions of Sec. 4 (c) of the Act. The court below, by the impugned order, has held that the suit was hit by the provisions of S.4 (c) of the Act and hence this application in revision

4. The learned counsel appearing for the petitioner has contended that the provisions of Sec. 4 (c) of the Act were not applicable in a suit for redemption and has further contended that only because some of the defendants in their written statement have challenged the title of the petitioner for redemption, the suit does not become a suit for declaration of title.

5. The only question that arises in this case is whether a suit for redempotion is covered by the provisions of Sec. 4 (c) of the Act. The question is whether a suit for redemption involves declaration of right or interest in any land or whether it is a suit for declaration or adjudication of any other right in regard to which proceedings can be taken under the Act.

6. A claim to redeem a mortgage actually does not attach to the land although the decree passed in that suit may ultimately affect possession which is also an interest in the land. It is well settled that by executing a mortgage one transfers only some interest to the mortgagee and that also by way of security. That interest is confined to realisation of mortgage debt which, in the event of non-payment, may be realised out of the said security. What remains with the mortgagor after the execution of the mortgage is the ownership of the property minus the interest transferred and the right to repay the mortgage money and to get the burden of security discharged. This right has been created in the mortgagor and not in the property (Lines have been underlined by me for emphasis). Thus when a mortgagor enforces his right to redeem, he does not enforce a right in land.

7. The relief for recovery of possession is not independent relief. Such a relief flows from the main relief. If the main relief does not fall within the mischief of the Act, the relief flowing from that relief can hardly be hit by the consolidation scheme. Thus, the applicability of Sec. 4 (c) of the Act depends upon the main relief and not on the ancillary relief for the simple reason that on payment of the mortgage money, the mortgagor is entitled in law to require the mortgagee to deliver possession and that right of his remains unaffected by the Act. On a perusal of various sections of the Act viz. Sections 8, 9, 9A, 10, 11, 13, 14, 15 and 18, it is abundantly clear that the Act nowhere deals with the rights and liabilities of the party under a mortgage. In the instant case, the existence of the mortgage is not disputed. On a perusal of Sec.18, it is clear that the encumbrance including a mortgage has been left absolutely untouched and unaffected under the scheme