Article 148 of the Schedule to The Limitation Act, 1908 (‘Act’) provides for the period of limitation for a mortgagor to redeem the mortgage, it stipulates in terms that:

Against a mortgagee to redeem or to recover possession of immovable property mortgaged. Sixty years When the right to redeem or to recovery possession accrues:

Given the above clear provision, we note that the cause of action for a mortgagor to redeem the mortgage and recover the possession of the mortgaged property would commence from the point when the mortgagor can, under the terms of the mortgage, redeem the mortgage property or recover the possession thereof. Thus, the crucial determining factor for commencement of the period of limitation would depend on the terms of the mortgage agreement entered into between the parties.The situations that may arise include the following scenarios, summarized as under:

I. Where, under the terms of the agreement, a specific date has been fixed for payment of mortgage debt. In such a case, the money can only be payable after the expiry of that period and no right to redeem the mortgaged property can legally be entertained before the said date. A suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would start running from the date so agreed to redeem the mortgage or recover possession of immovable property mortgaged under Article 148 of the Limitation Act.

II. Where, under the terms of the agreement, the mortgage is for a fixed period but without a specific date of expiry of the term. In such a case, the right of redemption can only arise on the expiration of a specified period and not before. A suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would commence from the expiry of the period so fixed.

III. Where, under the terms of the agreement, neither any specific date nor any term is fixed. In such a case, a suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would run from the date of the agreement of mortgage.

In the present case, it is an admitted fact that the mortgage of the disputed property was entered on 21.07.1935, and that the term of the mortgage was agreed and fixed for a term of twenty years. This being the position, the cause of action of the respondents/mortgagors to redeem the mortgage of the disputed property would accrue from the date of the expiry of the fixed term period of 20 years, and thereafter the limitation period of sixty years would commence. Thus, the term of twenty years of the mortgage would expire on 21.07.1955, and thereafter, the period of limitation of sixty years would commence, and the respondents/mortgagors could file a suit for redemption of the mortgage property until 21.07.2015. As in the present case, the respondents/mortgagors filed their claim on 21.06.2010, the same was well within the stipulated period of limitation provided under Article 148 of the Schedule to the Act.

Accordingly, for the reasons stated herein above, we find no illegality or infirmity in the impugned judgment, so as to warrant interference by this court. These petitions are thus dismissed, and leave is refused.

Civil Petitions No.3573 and 3574 of 2020

Khan Afsar. Versus Mst. Qudrat Jan widow and others.

10-03-2023