P (PLP)

MEHR CHAND MAHAJAN, J.

This second appeal arises out of a suit brought by Lal Singh and Rai Singh, plaintiffs for possession by redemption of 87 Kanals 3 Marlas of land and one-half of 60 Kanals and 19 Marlas of land detailed in the plaint mortgaged by their father with defend ants 1 to

3. It was alleged by the plaintiffs that their father Jawala Singh mortgaged 230 Kanals 15 Marlas of land for Rs. 3,500 with defendants 1 to 3, that subsequent to the mortgage one-half of the land was redeemed by their father and that defendants 1 to 3 then mortgaged their half share in the land with the father of defendants 4-to 7 from whom it was alleged by the plaintiffs they were entitled to redeem that portion of the land on payment of Rs. 2,

000. It was alleged that tile mortgage deed was executed under undue influence and fraud, that the term of sixty years provided in the mortgage-deed was a clog on the equity of redemption-and that an agreement was arrived at between the parties by which defendants 1 to 3 agreed that the land could be redeemed within the term mentioned in the deed. The trial Judge dismissed the plaintiffs' suit and this decision was affirmed on appeal by the learned District Judge. It was held that the mortgage was not vitiated by reason of any undue influence or fraud exercised by the motgagees on the mortgagor, that period of sixty years mentioned in the deed did not amount to a clog on the equity of redemption, that no agreement was arrived at between the parties under which redemption was possible within the period of sixty years and that in any case such an agreement could not be considered in view of the Provisions of sections 91 and 92 of the Indian Evidence Act. The unsuccessful plaintiffs have now preferred a second appeal to this Court. The finding of the lower appellate Court on the question of undue influence and fraud and on the question of a subsequent agreement are those of fact and cannot be considered in second appeal. No argument, was addressed on these points to us. On the question whether a period of sixty years amount to a clog on the equity of redemption the decision of the two Courts below again was not challenged. The sole point that was argued in this appeal was that by reason of the provisions of section 31 of the Punjab Relief of Indebtedness Act, 1934, the plaintiffs were entitled to deposit the mortgage money in the Court of the Collector and after making the deposit they were entitled to obtain possession of the land by redemption under the Redemption of Mortgages Act. The contention above-mentioned was not raises in either of the Courts below and was for tile first time mentioned in the grounds of second appeal and this was done on the basis of a decision of a learned single judge of this Court in Regular Second Appeal No. 1865 of 1944. In that judgment it was held that a mortgage could be redeemed under 'the provisions of section 31 of the Punjab Relief of Indebtedness Act by deposit of money that had been borrowed on the fact of the mortgage in the Court of the Collector of the district. If that decision lays down sound law, then there can be no doubt that the contention raised by the learned counsel even for the first time in second appeal should be entertained and allowed. I have, however, grave doubts about the correctness of this decision and am not prepared to accept the proposition laid down therein. The question for consideration is whether the provisions of section 31 of the Punjab Relief of Indebtedness Act, 1934 govern cases of usufructuary mortgages. In order to determine this matter, it is necessary to make a reference to the provisions of that section which runs thus: "31 (1) Any person who owes money may at any time deposit in Court a sum of money in full or part payment to his creditor. (2) The Court on receipt of such deposit shall give notice thereof to the creditor and shall, on his application, pay the sum to him. (3) From the date of such deposit interest shall cease to run - an the sum so deposited." The phraseology employed in section 32 may also be con sidered in deciding the import of section

31. The section is in these terms:- "32 (1) The Provincial Government may make rules for carrying into effect the provisions of this part of this Act. (2) In particular and without prejudice to the generality of the foregoing powers such rules may provide- (a) for determining the Court into which the sum shall be deposited. (b) the procedure for keeping accounts of such deposits and the manner in which notices are to be served on creditors and payment made to them. (3) The power conferred by this section of making rules is subject to the condition that the rules be made after previous publication". So far as I am aware no rules have been made by the Provincial Government for deposit of money in the Court of the Collector regarding ordinary debts. The language of section 31 implied that a deposit can be made in a Court (I presume a Civil Court). The Collector under the Redemption of Mortgages Act is not a Court in the ordinary parlance in which that word is considered in law and unless rules have been framed under section 32 to the effect that money can be deposited in the Court of the Collector, it cannot be said that the deposit made in the present case by the mortgagor acting under the Redemption of Mortgages Act was a deposit in the terms of section 31 of the Act. Be that as it may, the point raised is whether section 31 covers the case of a usufructuary mortgage and can it be paid in the case of a usufructuary mortgage that ,any person owes money to another and that money can be deposited in Court. The learned single judge in deciding Regular Second Appeal No. 1865 of 194,.4 expressed the opinion that .even in the case of a usufructuary mortgage a person owes money to another and therefore that section :has application to such cases. This view, in my judgment, goes contrary to a decision of a Full Bench of this Court in the case of Laehhman Singh v. Natha Singh (I. L. R. 1941 Lah. 71). In that case it was held that "the essence of "debt" is the liability of the' obligor which the obligee is entitled to enforce by action, Where a transaction neither im ports the personal liability of the obligor to pay, nor confers on the obligee the right to recover the amount by the coercive machinery of the law, it cannot be called a "debt". It was further held that "the principal characteristics of a usufructuary mortgage are that there is no personal liability of the mortgagor to pay nor has the mortgagee a right to have the mortgaged property brought to sale and that the money secured by usufructnary mortgage cannot be called a `debt' either according to the ordinary meaning of the word or the enlarged significance of the term as used in section 7 (1) the tact". In view of the decision of the Full Bench of this Court above-mentioned it cannot be held that the amount borrowed by a mortgagor on the foot of a usufructuary mortgage can be described in the terms or the language of section 31 of the Punjab Relief of Indebtedness Act, The phraseology of section 31 to the effect that any person who owes money may at any time deposit in Court a sum of money in full or part payment to his creditor negatives the contention that a usufructuary mortgage was in contemplation' of the statute and was covered by the phraseology employed in the section.. Apart from the consideration mentioned above the contention of the learned counsel and the view expressed in .the single Bench decision above quoted is negatived by the provisions of Part VII, section 33 of the Act That part deals with the cases of redemp tion of mortgages and amends certain provisions of the Redemption of Mortgages (Punjab) Act, 1913. The rest of the provisions have been left intact. It is an admitted canon of the construction of statutes that when a special procedure has been laid down and a special provision has been made on a particular subject then to that subject a general provision of the statute cannot be applied. When in the Punjab Relief of Indebtedness Act, the subject of redemption of mortgages has been specifically dealt with, then it cannot be said that the general provisions of section 31 can be attracted to the case of redemption of mortgages. Section 31 of the Act contemplates the deposit of a part of the money due to a creditor, A mortgage, however, cannot he redeemed piecemeal and it is obvious that the draftsman of section 31 never contemp lated the application of that section to the case of the redemption of mortgages. The whole object of section 31 was that if a sum of money was due from one person to mother, then he could escape from the payment of interest by depositing that money in a Court. The legislature contemplated the cases of creditors who may harass their debtors and decline to- receive the amounts due to them in order to earn further interest on the loans. But that section did not lay down any procedure for tire redemption of mortgages and delivery of possession of property from the posses sion of the mortgagee to that of the mortgagor. That subject had been dealt with in the Redemption of Mortgages Act and, as I have already said, that Act remained in fill force in spite of the provisions of section 31 of the Punjab Relief of indebtedness Act. On the other hand, by section 33 of the same statute certain amendments were made in that Act leaving the rest of the statute intact and there was not in any way affected by the Punjab Relief of Indebtedness Act, 1934. In my judgment, therefore, there is no justification for the proposition that a usufructuary mortgage can be redeemed by making a deposit in the terms of section 31 of the Punjab Relief of Indebtedness Act and the contention raised by the learned counsel on the authority of a decision of a learned single judge of this Court cannot be sustained. I would accordingly affirm the decisions of the two Courts below and dismiss this appeal but in the circumstances of this case, I would leave the parties to bear their own costs in this Court. The order as to the costs made in the Courts below is not in any way disturbed. BHANDARI, J--I agree. A. H Appeal dismissed.