The dismissal of an application for redemption under Section 4 of the Redemption of Mortgages Act, 1913, on the ground of prematurity is not hit by the provisions of Section 12 of the Act and does not bar the plaintiff from filing a regular suit for redemption.

S.S.SANDHAWALIA, J.

1. Doubts about the correctness of the ratio decidendi in the Division Bench judgment of this Court in Gurditta Singh V/s. Harbans Singh, 1974 76 PunLR 418, have rightly necessitated this reference to the Full Bench.

2. The legal issues, which fall for determination herein, arise from pleadings and facts which are not in serious dispute. The original owner of the land in the suit was one Gopal Singh, who mortgaged the same to Mst. Mejo, respondent, for Rs. 260. The deed of mortgage was executed at Kasur (now in Pakistan) on 25.06.1942, the period of mortgage being 20 years. Subsequently, Gopal Singh executed another mortgage deed in favour of Chanan Singh, plaintiff-appellant, on the 13.10.1959, whereby he vested him with the right to get the land in dispute redeemed from the first mortgagee, Shrimati Mejo. Apparently during the subsisting period of the original mortgage, i.e. on the 13.06.1962, Chanan Singh plaintiff-appellant filed an application for redemption of the land in dispute in the Court of the Sub-Divisional Officer (Civil), Patti, u/s. 4 of the Redemption of Mortgages Act, 1913. This application was resisted on behalf of Smt. Mejo, on the specific ground that the period of the mortgage was yet subsisting on the date when the application for redemption was made and consequently the plaintiff led no evidence in support of his case and the application was ultimately dismissed on the 19.11.1962.

3. Chanan Singh plaintiff-appellant then brought the suit, from which these proceedings arise, on 27.01.1965. He claimed redemption on the facts aforementioned and particularly averred in paragraph 5 of his plaint that since the period of the original mortgage in favour of Shrimati Mejo had now expired by the efflux of time he was entitled to claim the redemption of the suit land. In resising the suit, Shrimati Mejo defendant-respondent raised a preliminary objection that since the application of the plaintiff for redemption of the land in dispute was dismissed by the Collector on the 19.11.1962, and no suit had been brought by him for getting that order set aside within the prescribed limit of one year, the order of the Collector had become conclusive u/s. 12 of the Redemption of Mortgages Act, 1913 (hereinafter called the Act), and was, therefore, beyond challenge.

4. On the pleadings of the parties, the trial Court first framed the following preliminary issue:-

"Whether the suit is time barred?"

5. Relying basically on the division Bench judgment in AIR 1938 Lah 638, the trial Court concluded that the plaintiff-appellant was bound in law to institute a suit to set aside the order of the Collector dismissing his application under Section 12 of the Act, within the prescribed period of limitation. Consequently it held that the suit of the plaintiff was plainly barred by time and dismissed the same. On appeal the learned Additional District Judge, Amritsar, affirmed the findings of the trial Court. The present Regular Second Appeal, first came up before my learned brother Jain J., and in his lucid order he noticed the apparent conflict of Gurditta Singhs case (supra) with the previous Full Bench judgment in Tulsi Dass V/s. Diala Ram, AIR 1943 Lah 176 and, therefore, referred the matter to a larger Bench.

6. On behalf of the appellant Mr. H.L. Soni, inevitably placed reliance on Gurditta Singhs case (supra) to contend that a substantive right of redemption inheres in the plaintiff appellant and the mere dismissal of his application by the Collector under the Act is hardly relevant to the issue and cannot affect his right to bring a suit for redemption.

7. Undoubtedly the observations in Gurditta Singhs case (supra) lend firm support to the aforesaid contention. In the said case Tuli J., speaking for the Bench, has taken a view that the remedy provided by the Act of 1913 was a summary one, which was merely in addition to the substantive remedy of redemption and was not in any way in substitution thereo