A clog on the equity of redemption is a provision in a mortgage that restricts the mortgagor's right to redeem the property.

R.L. Anand, J. - The challenge in this Regular Second Appeal is to the judgment and decree dated 9.6.1999 passed by Additional District Judge, Hisar, who affirmed the judgment and decree of the trial Court which decreed the suit of the plaintiff-respondent for possession by way of redemption by holding that the suit is within limitation. Resultantly, the appeal of the defendant was dismissed by holding that the plaintiff-mortgagor is entitled to redeem the property on payment of mortgage money together with other amounts as calculated by the learned Civil Judge.

2. The sole point which requires determination is whether the suit was within limitation or not. Admittedly, the mortgage in dispute was executed on 8.12.1954 and the same was registered on 21.12.1954. The suit was instituted on 11.12.1984. The first appellate Court for the reasons given in paras 20 to 24 of its judgment dismissed the appeal by holding that the suit of the plaintiff was within limitation, and the said reasons are reproduced as under :-

"20. A bare reading of the provisions contained under Section 30 shows that in a suit for which the period of limitation is shorter than the period of limitation prescribed in the Indian Limitation Act, 1908 that suit may be instituted within a period of 7 years next after the commencement of the new Act in the year 1963 or within period prescribed for such (sic) by the Indian Limitation Act, 1908 whichever period expires earlier. In the old Act, the period for redemption of mortgage was 68 years but now this period has been decreased and the period of limitation is only 30 years to redeem the property. Reliance may be placed on Palaniswami Gounder (died) and others v. Chinnaswami Gounder and others, AIR 1986 Madras 316, wherein it was held that shorter period of Limitation was prescribed under the new Act as compared to the corresponding provisions under the old Act and, therefore, the suit could be instituted within a period of 7 years next after the commencement of the said Act or within the period prescribed for such suit by the old Act, whichever period expires earlier.

21. I am in complete agreement with the view taken by the learned trial Court that the respondent has placed reliance on the provisions under Section 30 of the Limitation Act, 1963 but such provisions are of no avail to him as he could have filed the suit for redemption in respect of the mortgaged property in dispute only upto period of seven years from the date of commencement of the said Act of the year 1963, if he was to take the benefit of the earlier period provided under old Act.

22. Again the controversy boils down to a limited sphere if the mortgagor, who has himself allowed the ordinary period of limitation to expire to seek redemption, can invoke the deferred clause in the mortgage deed to file a suit for redemption of mortgage or not ? According to the mortgagor- respondent, he could bring a suit within 38 years (30 years of limitation + 8 years) when the cause of action accrued in his favour to redeem the mortgage. Reverting back to the covenant as of the mortgage deed, we find that the vernacular reads as under :-

"Sharyat yeh hai ki jar rahan majkura bala arsa aath sal main adka marke haveli majkura bala ko fakul rahan kra lunga. Aur aath sal tak mikar haveli vagera majkura bala ko khali nahin kra sakega. Aur arsa aath sal tak kul jar rahan majkura bala ka sud wa kiraya brabar rehega. Agar mikar aath sal tak haveli vagera majkura bala fakul rahan naa karaye to char hazar rupaye ka sud wa kiraya barabar rehga. Aur mumlig 2850/- raupaya ka sud bashrah dus anne feesdi mahavar mikar murtahan naai ko ada karne ka jimewar hoga."

23. The learned counsel for the appellant contended that the words "Aur Aath Sal Tak" have been wrongly mentioned and in fact the words in the original mortgage deed must be Agar Aath Sal Tak. The learned counsel for the appellant further contended that in fact the respondent has placed on record the certified cop