A suit to establish rights in respect of a mortgage, brought after the dismissal of an application under the Redemption of Mortgages Act, is not required to be filed within one year, and is therefore not governed by Article 14 of the Limitation Act.

S.S.Dulat, J.

1. The facts leading to the present appeal under clause 10 of the Letters Patent are these. Fazal-ul-din and others mortgaged 202 Kanas and 19 Marlas of land with Mehar Singh in 1913 and a further mortgage was created on the same land in 1916. Out of this land, Fazal-ul-din and others sold in March 19233 a small piece measuring 10 Kanals and 12 Marlas to Diwan Chand comprised in Khasra No. 3217. The land, of course, remained in possession of the mortgagee. In 1944 Fazal-ul-din and others brought a suit for redemption and actually succeeded in obtaining a decree but, as they left India at time of the partition, they did not obtain actual possession. After the partition the Competent Officer appointed under the Evacuee Interest (Separation) Act,. thinking that the entire land was evacuee property, proceeded to deal with it and he found in accordance with the provisions of the Act that the mortgage, having lasted more than twenty years, stood extinguished by operation of law. Wishing to take advantage of that finding. Diwan Chand brought the present suit in March 1958 for the possession of the 10 Kanals and 12 Marlas of land that had been sold to him and regarding which he claimed that the mortgage was extinguished. The suit was resisted by the mortgagees, being the successors-in-interest of Mehar Singh, whoraised a number of pleas. One of these was that the mortgage on the land sold to Diwan Chand was not extinguished as it was at the time of the partition and for a long time before then, not evacuee propriety. Another objection was to the form of the suit, the plea being that the suit should have been for redemption. It was also pleaded that Diwan Chand was not the owner of the land, the objection being to the fact of the sale in his favour. The trail Court found that the land in suit had been sold to Diwan Chand but that the mortgage on the land was not extinguished because the Evacuee Interest (Separation) Act had no application to it, the land being not evacuee property. Regarding the form of the suit, the Court held that in to the peculiar circumstances the suit for possession was maintainable but that possession could be delivered to the owner only on payment of the proportionate mortgage money and he found that the proportionate amount would be Rs. 1,238. In the result, the Court decreed the plaintiffs suit for possession on payment of Rs. 1,238.

Against that decree both parties appealed, but the appellate Court dismissed both the appeals. The defendants-mortgagees then filed a second appeal in this Court while cross-objections were preferred on behalf of the plaintiff. Both these were heard together by Shamsher Bahadur, J., sitting alone. At that stage it was brought to the notice of the learned Judge on behalf of the appellants-mortgagees that sometime in 1945, Diwan Chand plaintiff had made an application for the redemption of the suit land under the Redemption of Mortgages Act, 1913, and that the collector had by his order, dated the 16th July, 1945 dismissed that application and as no suit had been brought to set aside that order within a period of one year, the claim of the plaintiff was barred by time, the submission being that the present suit was a suit to set aside the order of the collector dismissing the plaintiffs petition for redemption and as such it was governed by Art. 14 of the Limitation Act which provides a period of one year for such a suit. This contention prevailed and the learned Judge held that Ddiwan Chands claim for the possession of the land in suit was barred by time. The mortgagees appeal was consequently allowed by the learned Judge and the plaintiffs suit ordered to be dismissed. The cross-objections of course failed. The learned Judge, however, granted the plaintiff a certificate of fitness for a further appeal and it is on that certificate that the present appeal has been brought on behalf of Diwan Chand.

2. Mr. Aggarwal admits that diwan chand had made an applicatio