Holding

The appellant's objections are barred by constructive res judicata and the unproved receipt cannot be relied upon; the redemption order stands.

Summary

The District Collector ordered redemption of a mortgaged land parcel, an order that became final after the Supreme Court dismissed a Special Leave Petition. The appellant, Mohinder Singh, contended that the earlier mortgage had not been redeemed and that a receipt for Rs.425, allegedly received by the mortgagees, should invalidate the redemption order. The Court found that the receipt was never proved in any proceeding and that the appellant had failed to introduce it when required. It further held that the appellant's objections in the execution proceedings were barred by the doctrine of constructive res judicata, as the issue had already been finally decided in the civil suit. Consequently, the Court dismissed the appeal, upholding the Collector's redemption order.

Issues considered

Whether the order of redemption by the District Collector can be set aside on the ground that the first mortgage was not redeemed and a receipt of Rs.425 was not proved.
Whether the appellant's objections in the execution of the redemption order are barred by the principle of constructive res judicata.
Whether an unproved receipt can be relied upon to overturn a final order.

Legislation cited

Code of Civil Procedure, 1908s. 10

Subjects

mortgageredemptionconstructive res judicatareceiptCivil Procedureexecution of orderproperty law

Judgment

>
MOHINDER SINGH A
v.
STATE OF PUNJAB AND ORS.

JANUARY23, 2007

.. Mortgage:
[S.B. SINHAAND MARKANDEY KATJU, JJ.] B

Order ofDistrict Collector directing redemption ofmortgaged property
attainedfinality pursuant to dismissal ofSLP-Objections filed by Appellant c
in execution of the order of redemption-His contention that said property
was earlier mortgaged in favour of him and his brother, which had not
been redeemed-Held: Purported receipt by mortgagor from Appellant and
his brother not proved, hence, cannot be relied upon-Appellant raised
unnecessary objections in execution oforder ofredemption-Even otherwise,
D
his contention barred by principle of constructive res judicata--Code of
Civil Procedure, 1908-Res judicata--Constructive res judicata.

The District Collector passed order directing redemption of mortgaged
property. That order attained finality pursuant to dismissal ofSLP by this
Court. In proceedings for execution of the order of redemption, Appellant E
filed objections. He contended that the said property was earlier mortgaged
in favour of him and his brother, which had not heen redeemed. The
property was allegedly mortgaged in favour of Appellant and his brother on
purported receipt of a sum ofRs.425. Objections filed by the appellant in
the said proceedings were rejected. However, appeal preferred by appellant F
)
was allowed. But the order was set aside in second appeal by the Financial
Commissioner, Revenue. High Court upheld the order of the Financial
Commissioner. Hence the present appeal.

Dismissing the appeal, the Court
G
HELD: 1.1. The contention of the appellant, that keeping in view the
fact that the first mortgage was not redeemed, the second mortgage could
not have been directed to be redeemed, in the facts and circumstances oi
the case, is misconceived. [Para 12) [1189-A)
H
1185
1186 SUPREME COURT REPORTS [2007] I S.C.R.
~
A 1.2. From the conduct of the parties, it is evident that while creating
the purported second mortgage, the first mortgage was redeemed. The .;
second mortgage deed was registered. There was no reason why it was not
acted upon. [Para 13] [1189-B]

2.1. In the civil suit, a finding of fact had been arrived at that the order
B
for redemption was valid in law. The said decree passed by the Civil Court
attained finality. [Para 15] [1189-E]
1
....
2.2. Contention of the appellant that the factum in regard to the
issuance of the said receipt of Rs. 425 having not been brought on records
c in the earlier proceedings, the impugned order cannot be sustained is
wholly fallacious. If the receipt in question was to be brought on record, it
was for the appellant to do so. He having failed to do so, now cannot be
permitted to turn round and contend that the said receipt should be taken
into consideration by this Court. [Para 16] [1189-F]
D
2.3. The Financial Commissioner in his order has taken into
consideration all aspects of the matter. It has been found that miscarriage
of justice had taken place. Keeping in view the factual background obtaining
in this case, it is held that the appellant had raised unnecessary objections
in execution of the order of redemption passed by the Collector. Even
E
otherwise, the contention of the appellant is evidently barred by the
principles of constructive res judicata. In any event, the said purported
receipt having not been proved in accordance with law, no reliance can be
placed thereupon. [Paras 17 & 18] [1189-G-H, 1190-A]

F CIVIL APPELLATE WRISDICTION: Civil Appeal No. 325 of2007.
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From the Judgment/Final Order dated 10.4.2003 of the High Court of
Punjab and Haryana at Chandigarh in C.W.P. No. 5717/2003.

G Rajesh Srivastava for the Appellant.

Chandra Prakash Pandey, Sanjay Jain, Mukesh Kumar, Vinay Arora
and Sudarshan S. Rawat for the Respondents.
-t

The Judgment of the Court was delivered by
H
)

MOHINDERSINGHv. STATE [SINHA,J.] 1187
)
S.B. SINHA, J. : 1. Leave granted. A
...
2. Assailing an order dated 28.08.2002 passed by the Financial
Commissioner (Revenue), Punjab, the appellant herein filed a writ petition
before the Punjab and Haryana High Court which by reason of the impugned
judgment dated 10.04.2003 has been dismissed.
B
3. The fact of the matter is as under:

One Telu Ram s/o Hira, resident ofKotla Power House, Tehsil Anandpur
Sahib District Ropar, Punjab mortgaged 38 K 14 M ofland with the appellant
and his brother Lachman Singh in equal shares on receipt of a sum of c
Rs. 425. On consolidation of the land, new Khasra Numbers 159, 160, 536,
538, 541, 545, 546, 547 and 549 were carved out in lieu of the old Khasra
Numbers.

4. Appellant herein claimed that he and his brother had been put in
possession of the said mortgaged land. Without, however, redeeming the
D
) mortgage, Telu Ram again mortgaged the said land in favour of Harjap
Singh, Sohan Singh, Surjit Singh and Manjit Singh. In the said deed of
mortgage dated 21.11.1978, it was stipulated:

"I now mortgage I/4th of the said land to ffarjap Singh son of Shri E
Jagat Singh, 1/.i of the said land to Sohan Singh son ofShri Lachman
Singh @ Bakhtawar Singh adopted son of Chanan Singh and Yi of
the said land in equal shares to Surjit Singh and Manjit Singh sons
of Mohinder Singh son of Shri Jagat Singh, residents of Badhal,
.. Tehsil: Anandpur Sahib for Rs. 5000 the half of which is Rs. 2500
F
) and received Rs. 4075 and Rs. 500 towards expenditure of
registration and Rs. 425 is kept as Amanat with the mortgagees for
being paid to Lachman Singh and Mohinder mortgagees which is
to be paid to them and a receipt is to be obtained for the said
payment. The possession of the land is given today. The income
of the land will be adjusted against the interest of the mortgage G
money."

5. However, the mortgagors allegedly received the said sum of Rs. 425
from the mortgagees wherefor a receipt was allegedly granted on 20.02.1979.
Indisputably, an application for redemption of mortgage was filed by the B
-f

1188 SUPREME COURT REPORTS · [2007] 1 S.C.R.
·~

A heirs and legal representatives of said Telu Ram before the Collector of the
District on 17 .06.1991. "
r
6. By a judgment and order dated 28.04.1992, the Collector directed
redemption of the said mortgaged property. It is not in dispute that the
purported receipt dated 20.02.1979 had not been brought on records in the
B said proceedings.

7. The contention of the appellant that the same could not be done as
he or his brother were riot parties in the said proceedings, however, appears
to be misplaced as it is stated at the bar that the endorsement was made in
c the deed of second mortgage itself.

8. A civil suit was filed by Harjap Singh and others questioning the
said order of the Collector dated 28.04.1992. A decree was passed but an
appeal thereagainst was filed by the heirs and legal representatives of Telu
Ram before the DistrictJudge; Ropar which was allowed by an order dated
D 03.03.1997. A second appeal preferred by the said Harjap Singh and others
.,
has been dismissed by the High Court.

9. Some of the lands in the mean time were sold by the heirs and legal
representatives of Telu Ram in favour of Bhagat, Singh a~ others whC?
E filed an 'application before the Assistant Collector, 'i st Grade,
Anandpur ~ahib, District Ropar for possession of the lands in terms of the
order ofthe'C()llector dated 28.04.1992. Objections filed by the appellant in
the said proceedings were rejected. However, an appeal \Vas preferred
thereagainst by the appellant which by reason of a judgment and order
F dated 11.06.2002 was allowed. A second appeal preferred by the respondents
herein before the Financial Commissioner Revenue, as indicated hereinbefore, r "
was accepted.

I 0. It is not in dispute that the second mortgagees were the family
members of the appellant and his brother.
G
11. It has also not been disputed that the matter had come up for
consider~tion before this Court on an earlier occasion from a judgment and
order passed by the High Court in the second ~ppeal and the said special f

leave petition was dismissed. The direction for redemption of mortgage
H issued by the Collector, therefore, attained finality.
MOHINDERSINGHv. STATE [SINHA,J.] 1189

12. The contention of the,appellant, that keeping in view of the fact A
that the first mortgage was not redeemed, the second mortgage could not
have been dlr~cted to be redeemed, in the facts and circumstances of the
case, is misconceived.
' \

13. From the conduct of the parties, it is evident that while creating the
purported second mortgage, the first mortgage was redeemed. Harjap Singh B
is the brother ofMohinder Singh, Sohan Singh is the son ofLachman Singh,
Surjit Singh and Manjit Singh are the sons of Mohinder Singh. The second
mortgage deed was registered. There was no reason why it was not acted
upon.

14. The story that the aforementioned sum of Rs. 425 was taken back
c
from the mortgagees by said Telu Ram admittedly had not been proved. It
has been accept.!d before us that the said co11tention had not been raised
in the earlier proceedings. On our query as to whether the said receipt had
been exhibited before the concerned authorities, it has been accepted that
the said receipt was not duly proved and marked as an exhibit in the D
) proceeding before the Collector.

15. In the civil suit, a finding of fact had been arrived at that the order
for redemption in favour of Telu Ram and Radha Krishan was valid in law.
As indicated hereinbefore, the said decree passed by the Civil Court attained E
finality.

16. Contention of the leanied counsel for the appellant that the factum
in regard to the issuance of the said receipt having not been brought on
records in the earlier proceedings, the impugned order cannot be sustained,
in our opinion, is wholly fallacious. If the receipt in question dated 20.02.1979 F
was to be brought on record, it was for the appellant to do so. He having
failed to do so, in our opinion, now cannot be permitted to tum round and
I ,
contend that the said receipt should be .taken into consideration by this
Court.

17. The Financial Commissioner in his order dated 28.08.2002 has taken G
into consideration all aspects of the matter. It has been found that miscarriage
of justice had taken place.

18. Keeping in view the factual background obtaining in this case, we
have no hesitation to hold that the appellant herein had raised unnecessary H
1190 SUPREME COURT REPORTS [2007] l S.C.R.

A objections in execution of the order of redemption passed by the Collector.
Even otherwise, the contention of the appellant is evidently barred by the
principles of constructive res j:µdicata. In any event, the said purported
receipt having not been proved in accordance with law, no reliance can be
placed thereupon.

B For the reasons aforementioned, there is no merit in his appeal which
is dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000.

B.B.B. Appeal dismissed.

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