Aziz-ur-Rehman Vs Anwar Hayat etc

a

PESIIAWAR HIGII COURT,

BANNU BENCH.

(ludicial DePartment)

ORDER

Date ofhearing: 23.01.2025.

For petitioner: Mr. (Jmer Daraz l(hattak, Advocate.

For respondent: Mr. Basir Gulbaz l(hattak, Advocate.

K/4MRAN HAYAT MIANKHEL, J.- The petitioners through the instant petition has questioned the validity of impugned order/judgment dated 03.05.2024 passed by the leamed Revisional court as well as the judgment dated 12.1,0.2023 rendered by the learned trial court, whereby the application of petitioners for rejection of petition for final decree was concurrently dismissed.

2.Briefly stated facts of the case axe that the petitioners instituted a suit for declaration against the respondents bearing No.69l1 (Sher Zartnn etc V.

Gudi Khel etc) while the respondents also filed a suit for possession through redemption of the property mortgaged in the year 1979 bearing No.68/1 (Gudi

Khel V. Sher Zaman etc) against the petitioners' After proper contest, suit No'69/l of the petitioners was dismissed while that of the respondents bearing No.68/1 was decreed. The aggrieved parly up to the August Peshawar High Court Peshawar availed their legal remedies, but in vain. However, on accq)tanc€ of a petition for review bearing No'49/2005, this Court vide judgment dated 09.01.2006, directed Gudi KheVpetitioners to seek his remedy from the Distict Judge Karak in shape ofa review or an application n/s l2Q) C.P.C in the suit for possession through partition. Resultanfly, they submitted l2(2) C.P.C petition on 07.02.2006 while Sher Zareen etc instituted a review petition on0l.02'2006 with regard to suit for declaration etc. On acc€ptance ofboth the above referred petitions by the District Judge ordered remand ofthe cases to the tial court for disposal after affording sufficient opporhrnity to the parties for recording their evidence. After remand, the leamed trial Court passed partial decree in both the above referred suits via consolidated judgment dated 31.07.2010. Aggrieved therefrom Sher Zareen etc questioned the impugned judgment of the learned trial

court in suit No'68/1, before the leamed appellate court, but the same was dismissed via judgment and decree dated 23.07.2012. Sher Zareen etc filed a revision petition No.99-B/2014 in this court against the judgment of the learned appellate court which too was dismissed ot 22.ll.2021- Thereafter, the decree holders (Gudi Khel etc) preferred an application on 03.12.2021 for the final decree, wherein the petitioners Aziz-ur-Rehman etc filed an application for rejection of petition for fural decree and after proper contest, the same was dismissed on 12.10.2023 by the leamed hial court where against, the petitioners filed a revision petition but the same was also dismissed by the leamed Additional District Judge-I, Karak vide impugned judgment dated 03.05.2024, hence, the instant petition.

3.The leamed counsel for petitioners vehemenfly argued that the petitioner's right to redeem the mortgaged rights rmder the preliminary decree is baned by the operation ofArticle 181 of schedule-l of Limitation Act.

4.Leamed counsel for respondents refuted the arguments of the leamed counsel for petitioners by

stating that the judgmentVorders of the two courts below are well reasoned and relied upon them.

5.Arguments heard and record perused.

6.The perusal of the record reveals that it is usufructuary mortgaged and preliminary decree in a suit for redemption of usufructuary mortgage may, under clause (c) (i) of Rule 7 (l) of order )OO(V, CPC, fixed a time for payment of the amount declared due under the decree but default in making the payment of amount declared under the decree within the time fixed does not operate to debar the plaintifflmortgagor from all rights to redeem the mortgaged properly. If payment of the amount declared due under the preliminary decree is not made within time fixed by the Court, then under clause (c)

(ii)of rule 7 a mortggee/defendant is entitled to apply for a final decree in a case of a mortgagor other than a usufructuary mortgage. It follows that the mortgagee is not entitled to apply for a final decree in the case of a usufructuary mortgage' It is only the plaintifV mortgagor who can apply to the Court to pass a final decree and on payment of the amount declared due under the preliminary decree to order the

mortgagee to Put him in possession of the plaintiflmortgagor's properties. The temrs of final decree in the case of mortgage other than a usufructuary vary according to the nature of the mortgage as provided under sub-rule 3 of rule 8 of order )OO(V, Code of Civil Procedure. The obvious reason for the exception in regard to the usufructuary mortgage from the effect of default (here the respondent/mortgagor has paid the amount of the decree) in making payment of the decretal dues within time fixed by the Court seems to be that the mortgagee being in possession of the property, his interest are not in in any way affected by the plaintiff/mortgagor failure to make payment within time fixed in the preliminary decree and it is the mortgagor's interest that suffers for until he made payment he cannot take back the mortgage property.

The leamed counsel for petitioner contended that the respondent/mortgagor should have applied for the extension of time but not for the frnal decree but this arguments of the leamed counsel for petitioner has got no force because in case ofusufructuary mortgage the mortgagor need not ask for extension of the time

fixed for payment by the preliminary decree under the provision of sub 2 of rule 7. The provision of that sub rule apply to the case of mortgage for foreclosure or sale only. The affect of extension of time under said sub-rule is postponement of the time for passing the final decree for foreclosure or sale, as the case may be, which is not allowed in the case of a usufructuary mortgage.

7.The mortgagor's right to redeem the mortgaged property subsists until a final decree debars the mortgagor from all right to redeem, and that in the case of a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale. Even in the case of a final decree that provides for a sale of the mortgaged property, or a sufficient portion thereof, to satisfy the mortgage-debt, the mortgagor is entitled to redeem the mortgaged property even after sale has taken place but before confirmation of the sale'

8.Thus, in the case of a mortgage decree by conditional sale, or anomalous mortgage the terms of which provided for foreclosure only, where the final decree declares the plaintiff/mortgagor debarred from

his right to redeem the mortgaged properly, or, where in pursuance of the final decree the mortgaged property has been sold and the sale is confirmed, then the right to redeem is extinguished' In other cases, the right to redeem the mortgaged properly subsists, and so long the right is there, it is always open to a mortgagor to avail himself of that right on payment of the amount declared due tmder the preliminary decree.

g. In case in hand, it is admiued fact that petitioner/mortgagee had not applied to the Court, for final decree while no decree could be passed in favour of respondent, being usufructuary mortgage, however, the right to redeem could not be extinguished till the final decree is passed, There is also no bar to bring a second suit where the property is not redeemed despite an earlier decree for redemption' kr this respect reliance is placed on case title "Babu Ahmad Din and others Vs. Ch. Muhanmad Amin and others (PLD 1961 Lahore i11), v,herein it has been held thail-

"A second suit for redemption would lie even where the mortgagor had not

redeemed the property after a decree fot redemption had been passed in his faovur"' Reliance in this regard is also placed on case titled "Md.Azim and others Vs, Md Sultan (A.I.R (331 1948 Pana 991. wherein it has been held that:

"In the case of a usufructuary mortgage even after the period for payment of the amount declared due fixed in the preliminary decree has expired the plainti$ mortgagor can apply for a final decree at any time before the right to redeem becomes barred. No question of limitation arises in such a case as the plaintiff- mortgagor has a right to apply for the final decree until his right to redeem the mortgaged propertY is barred'"

Further reliance is placed on case titled"/liruL$@ Vs. Miru and another" 0016MLD 1590.

10.The contention of the leamed counsel for the petitioner that the respondent/mortgagor's right to redeem the mortgaged property under the preliminary decree is baned by limitation, but no question of limitation arises in this case as the plaintiffhas a right to apply for the fural decree until his right to redeem the mortgaged property is barred. It is not disputed that the respondenVmortgagor have deposited the decretal amount and even ifthey have not deposited the decretal amount even then their right to redeem

the property were not infringed until and unless ttre right to redeem the property is debared by the final decree.

11.For what has been discussed above, this petition being bereft of any merit is hereby dismissed' Dt:23.01.2025 llh,,,t,

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