P L D 1952 Lahore 73 (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this second appeal are as follows. One, Gul Sher, son of Alam, mortgaged 134 kanals of land situate in village Sandral, Tehsil Khushab in the Sargodha District, by a registered‑deed executed on the 6th of March 1882 and registered the next day. The appellants are the grandsons of this Gul Sher while the respondents are the successors‑in‑interest of the mortgagees. Two attempts were made on behalf of the appellants to have the mortgage redeemed. The first application that was presented to the Collector under the provisions of the Punjab Restitution of Mortgaged Lands Act, 1938, (hereafter referred to as the Act), was dismissed for default on the 13th of January 1944. A petition for restoration' of that application was again dismissed on the 4th of April 1944. A second application for redemption to the Collector was lodged on the 24th of 'June 1948 and this time the Collector ordered redemption on the 26th of March 1949. In the meantime, however, the plaintiffs‑respon dents had brought the suit, out of which the present appeal has arisen, on the 10th of March 1943 for a declaration that they had become the owners of the mortgaged property by efflux of time. The trial Court. negatived the claim and dismissed the plaintiffs' suit with costs. On appeal the decision was reversed by the learned Senior Subordinate Judge, Sargodha Hence this second appeal. It is not denied that if the ordinary law of limitation were to be applied, the petitions for redemption presented on behalf of the appellants to the Collector were all barred by time. The sixty years' limitation available to the mortgagors (which term includes their successors‑in‑interest), expired on the 7th of March 1942. It is, however, contended by Mr. Jamil Hussain Rizvi on behalf of the appellants that, with the enforcement of the Act, all mortgages subsisting on the date of its pro mulgation anal which were covered by its provisions, were somehow deemed to have been cancelled and all that remained for the Collector to do was to restore possession of the mortgaged property to the original mortgagors or their succes sors‑in‑interest. The contention is clearly unsustainable on the language of the Act itself. Section 7 of the Act, to which learned counsel has referred, provides that in certain circum stances, after an enquiry, the Collector may order in writing that the mortgage may be extinguished and where the mort gagee is still in possession, that the mortgagor be put into possession of the property in question. . This clearly implies that until an order of that character is passed by the Collector; the mortgage continues to subsist. If the argument of learned counsel were sound, no such enquiry as is prescribed in section 7 of the Act would have been necessary at all, and the Legis lature would have been required merely to provide that the quondam mortgagors should be put in possession of their properties. I have no hesitation in repelling the contention as devoid of all force. Mr. Jamil Hussain Rizvi then tried to argue that the combined effect of sections 2 and 4 of the Act was to do away with the bar of limitation in respect of mortgages effected prior to the 8th of June 1901, if they subsisted on the date when the Act was brought into force, namely, the 15th of May 1939. These sections may be reproduced below :‑ "2. Notwithstanding anything contained in any enact ment for the time being in force, this Act shall apply to any subsisting mortgages of land, which were effected prior to 8th June 1901." (There is an explanation appended to this section which is not material for our purpose). "4. A mortgagor to whose land the provisions of this Act apply, may at any time present a petition to‑the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions." Learned counsel has stressed the words "at any time" occurr ing in section. 4 and has based on them the argument that in the‑ case of a mortgage covered by the Act, the mortgagor would be at liberty to apply for restitution of possession under section 4, irrespective of the fact whether the mortgage subsisted at the time of such petition or not. In support of this argument, learned counsel has cited a ruling by Mr. Ram Chandra, Financial Commissioner, Punjab, reported as Chand Khan v. Ismail Khan (1946) 25 L. L. T. 6. The learned Financial Commissioner, differing from the opinion of Sir James Anderson, one of his predecessors, embodied in Partap Singh v. Anwer Khan (1945) 24 L. L. T. 11, held that even though sixty years' limitation may have expired at the time a petition is presented under section 4 of the Act, action could be taken under the provisions of the Act by the Collector provided that the mortgage subsisted when the Act was promulgated and otherwise satisfied the conditions about the time of its creation imposed by the Act. With all respect to the opinion of Mr. Ram Chandra, it seems to me that his view is clearly erroneous. The law of limitation is included in Item 4 in the Concurrent Legislative List of Schedule VII of the Constitution Act. If the Punjab Act is to be construed so as to do away with the law of limitation in respect of petitions by mortgagors for redemption of mortgages covered by the Act, then to that extent, the pro visions of this Provincial Law would be repugnant to the provisions of the Limitation Act which is an existing Pakistan Law dealing with matters included in the Concurrent Legis lative List. Section 107 of the Constitution Act provides that the existing Pakistan Law in such circumstances, whether passed before or after the Provincial Law, shall prevail and the Provincial Law shall, to the extent of the repugnancy, be void. An attempt, therefore, to read into the Punjab Act an implied provision abrogating the law of limitation for such petition, would be bound to fail on this ground. But I do not think it is necessary to impute such an intention to the Punjab Legislature. In all probability, the Provincial Legis lature had no intention of interfering with the law of limitation by their own enactment. The words "at any time" occurring in section 4 of the Punjab Act need not receive the unreason able interpretation that the petition for redemption could be lodged without any regard for limitation. The Legislature seems to have assumed that the mortgage subsisting at the time of the promulgation of the Act, would still be subsisting when the petition under section 4 is presented to the Collector. On this view there would be no repugnancy between the Provincial Act and the Limitation Act. The two acts then could very well stand together. Mr. Jamil Hussain Rizvi also drew my attention to Megh Rai v. Allah Rakhia (A. I. R. 1947 P. C. 72) in which it was held that the Act was intra vires of the Punjab Legis lature. It is significant, however, that the question of limi tation was not directly or indirectly touched upon by their Lordships of the Privy Council in that case. The authority, therefore, affords no assistance to the contention raised by Mr. Rizvi. Mr. Rizvi then urged that section 12 of the Act preclud ed the Civil Courts from questioning the validity of any proceedings taken under the Act by the Collector. The law is, however, well settled that orders and proceedings of Courts of special jurisdiction cannot be challenged in the ordinary Civil Courts if they are with jurisdiction. If, however, those orders and proceedings are ab initio void for want of juris diction, then the ordinary Civil Courts have the power declare accordingly. It is clear in the present case that they mortgage had been extinguished by the efflux of time, before the Collector was approached under the Act by the respondents. There was thus no mortgage subsisting at the time) of the petition under section 4 of the Act, and the subsequent proceedings by the Collector were wholly without jurisdiction. The redemption order by the Collector, consequently, had no legal effect whatever. The result is that the appeal fails and is hereby dismissed. In view of the nature of the questions involved, I leave the parties to bear their own costs in this Court. A. H. Appeal dismissed.