Automatic redemption of mortgage occurs under Section 12 of the Bihar Money Lenders Act after seven years without requiring legal action, reaffirming principles of res judicata in execution proceedings.

JUDGMENT :

Arun Kumar Jha, J.

The instant civil miscellaneous petition has been filed by the petitioners for quashing the order dated 18.12.2017 passed by the learned Sub Judge-VII, Siwan in Execution Case No. 01 of 1999 whereby and whereunder the aforesaid execution case was closed and the petitioners were given an option to file fresh execution case. Further prayer has been made to restore the aforesaid execution case to its original position.

2. Briefly stated, the facts of the case, as flowing from the record, are that the plaintiffs and respondent 2^nd set are decree holders and respondent 1^st set are judgment debtors. The original plaintiffs, namely Harbans Roy and Paramhans Roy, instituted Title Suit No. 348 of 1985/7 of 1992 for declaration of their title and recovery of possession in respect of suit land comprised in Khata No. 284, Plot No. 3283 measuring 1 bigha 6 katha 2 dhur situated in Mauza Chainpur, Baharakhpur, P.S. & District-Siwan. The aforesaid title suit was dismissed by the learned Sub Judge-VII, Siwan vide judgment dated 09.12.1992 and decree dated 21.12.1992. Thereafter, original plaintiffs preferred Title Appeal No. 1 of 1993 against the judgment and decree of the learned trial court. The Title Appeal No. 1 of 1993 was allowed by learned Additional District Judge-II, Siwan vide judgment dated 27.11.1998 and the judgment and decree of the learned trial court passed in Title Suit No. 348 of 1985/7 of 1992 were set aside. It further transpires that the defendants of Title Suit No. 348 of 1985 and respondents of Title Appeal No. 1 of 1993 preferred Second Appeal No. 20 of 1999 which was dismissed on 12.01.2000 under Order 41 Rule 11 of the Code of Civil Procedure (for short ‘the Code’) but with modification of the judgment of the first appellate court that the right, title and interest over the suit land should be declared in favour of the plaintiffs subject to the mortgages encumbered on the suit land in favour of the defendant no.4 and the father of the defendant no.1, namely Raj Narayan. It was also held that the plaintiffs shall be entitled to redeem those mortgages in due course of law and get recovery of possession on the basis of title. After execution case being filed on behalf of the decree holders, an objection petition dated 09.10.2014 was filed by the judgment debtors in the aforesaid execution case for dismissal of the execution proceeding. The said application was heard and rejected on 18.04.2016. The rejection was challenged by the judgment debtor by filing Civil Misc. No. 568 of 2016 which was also dismissed by this Court on 07.09.2016. Prior to that, judgment debtors filed a Misc. Case No. 7 of 2001 against the decree holders for dismissal of Execution Case No. 1 of 1999. But the said miscellaneous case was dismissed. Thereafter, it appears the judgment debtors filed another application dated 08.03.2017 under Section 151 of the Code. A rejoinder dated 21.03.2017 was filed by the decree holders. The application dated 08.03.2017 filed by the judgment debtors was allowed by the learned executing court vide order dated 18.12.2017 which is under challenge before this Court.

3. Learned counsel for the petitioners submitted that the impugned order is not sustainable as the learned executing court has acted illegally and without jurisdiction while passing the impugned order. Learned counsel further submitted that for better appreciation of the issue involved in the case it was necessary to look into the facts of the case. The father of the petitioner nos. 1, 2 and 4, namely Harbans Roy (since deceased) purchased through registered sale deed dated 09.01.1974 the aforementioned suit land having area of 1 big