1994SCMR1861 (PLP)

(From the judgment/order of Lahore High Court, Lahore, dated 11‑2‑1992 in L.PA. No. 32‑C of 1972). ‑‑‑OXXII. R.4‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Suit for redemption of mortgage‑‑‑Death of one of plaintiffs during pendency of second appeal‑‑‑Legal heirs of deceased plaintiff appellant were not brought on record within prescribed period nor application for setting aside abatement was made within time‑‑‑Defendant's application before High Court for dismissing second appeal as a case of total abatement was dismissed as also their letters patent appeal‑‑‑Validity‑‑‑Finding rendered by High Court that it was not the case of total abatement was correct‑‑‑Any inheritor or transferee of even a portion of equity of redemption was entitled to redeem the mortgage in its entirety ‑‑‑Co -plaintiffs of deceased could continue appeal even though it had abated in so far as legal representatives of deceased plaintiff were concerned‑‑‑Leave to appeal was refused in circumstances. Sardar Roshan Ali Sindhu, Advocate Supreme Court and Rana Maqbool A. Qadri, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 19th July, 1993. SAAD SAOOD JAN, J.‑‑‑Allah Ditta, Allah Rakha and Barkat Ali brought a suit for redemption of a mortgage relating to certain agricultural land situate in Chak Allah Nawab of Tehsil Sialkot. The suit was dismissed by the trial Court and their appeal before the District Judge, Sialkot, also failed. They flied a second appeal m the High Court. On 1‑1‑1969 when the appeal was pending Allah Ditta died. His legal heirs were not brought on the record within the prescribed period. Similarly, the application for setting aside the abatement was also not made within time. Thus so far as he was concerned the appeal stood abated. The petitioners moved the High Court for dismissing the appeal as, according to them, it was a case of total abatement. A learned Single Judge turned down their prayer holding that even in the absence of the legal representatives of one of the appellants the appeal could be prosecuted by the co‑appellant. Being aggrieved by the order of the learned Single Judge the petitioners filed a Letters Patent Appeal. A Division Bench of the High Court upheld the view taken by the learned Single Judge and dismissed the appeal. They now seek leave to appeal from this Court.

2. After hearing the learned counsel for the petitioners we are not persuaded that the view that prevailed in the High Court is erroneous. It is to be noticed that an inheritor or transferee of even a portion of the equity of redemption is entitled to redeem the mortgage in its entirety (see Mirza Yadalli Beg v. Tukaram and another AIR 1921 PC 125). That being so, there is no reason why the co‑appellants of Allah Ditta could not continue the appeal even through so far his legal representatives were concerned, it had abated. Leave is refused. AA./M‑2043/S Leave refused.