P L D 1972 Lahore 682 (PLP)

(e) West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S. 10 read with Limitation Act (IX of 1908), S. 28 & Art. 148‑Mortgagor allowing period of limitation prescribed under Art. 148 of Limitation Act, 1908 to expire‑‑ Sub stantive rights of mortgagor in mortgaged property extinguished and right and title in mortgagee created on principle of extinctive proscription‑Redemption under S. 10‑Not competent in circumstances. Where a person who could have sued for possession of property, allows the period of limitation prescribed for the suit to expire, his title is, under this section destroyed. The principle applies equally to suit for possession of mortgaged land. In this view of the matter a petition under section 1,0 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 19;4, will not be competent if the mortgagor has allowed the period of limitation prescribed under Article 148 of the Limita tion Act to expire, because his substantive right will in such an event be extinguished in the mortgaged property on the principle of extinctive prescription embodied in section 28 substantively resulting in the creation of a right and title in the mortgagee who may be in its possession. Fatimatul Nissa v. Sundar Das (1900) 27 Cal. 1004 (P C) rel. Abdur Rahman Khan Ghazi for Petitioner. SARDAR MUHAMMAD IQBAL, J.‑The facts of the case are that the predecessor‑in‑interest of the petitioner mortgaged land measuring 14 kanals 18 marlas situate in village Charar, Tehsil Ferozewala, District Sheikhupura, in favour of the respondents. The petitioners submitted an application on the 6th of December 1969, under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, before the Collector, Sheikhupura, for restitution, without payment, of the mortgaged land, on the ground that twenty years had elapsed since the land was mortgaged. The Collector by his order dated the 30th of May 1970, accepted the application and directed the restitution of the land in dispute. Tim respondents filed an appeal before the Additional Commissioner (Revenue), Lahore Division, Lahore, which was accepted on the 8th of August 1970 by Ch. Muhammad Shaft Zafar, anti he remanded the case to the Collector by observing that he should determine "whether the mortgage at the time of submitting the application was more than 60 years old or less and if it is found that it was less than 60 years old; then orders for its restitution may be passed; otherwise the application for restitution may be rejected". The petitioner filed an appeal under section 14 (2) of the Act before the Board of Revenue which was dismissed by Mr. S. A. M. Khan. learned Member, by his order dated the 17th of March 1971. This is a petition under Article 98 of the Constitution with the prayer that by setting aside the orders dated the 8th of August 1970 and the 17th of March 1971, the one passed on the 30th of May 1970 by the Collector be restored.

2. The learned counsel contended that Commissioner alone was competent under section 15 to hear the appeal against the order of the Collector and therefore, the Additional Com missioner's order dated the 8th of August 1970, was a nullity. A The Commissioner is defined in clause (13) of section 3 of the General Clauses Act to include the Additional Commissioner and that being so the contention is untenable. Be that as it may, the final order in this behalf is by the Member, Board of Revenue and even if there had been any irregularity it would have been cured by the order of the Board of Revenue as held in Muhammad Farid Jan v. Colonisation Officer (P L D 1965 S C 399). "By section 211 of the Act, the Board of Revenue possesses power to revise an order passed by any subordinate officer and questions of legality as well B as propriety of such a decision would be open in revision before the Board. The order of the Board was passed after full hearing of both the parties on the merits of the case. Even if therefore, the intermediate appellate links were weak, the final order in revision, referable as it was to section 211 of the Act could not be successfully assailed as illegal".

3. It was next contended that the Limitation Act did not apply to the proceedings under the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 and that a mortgagor can apply under section 10 to the Collector for the restitution of possession of the mortgaged land at any time after the expiry of 20 years of a usufructuary mortgage In order to examine this contention it is necessary to refer to section 10 which reads as:‑ "The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any usufructuary mortgage the period whereof he expired, may present a petition to the Collector for the restitution of possession of the mortgaged land. Explanation.‑A mortgage shall be deemed to subsist for the purposes of this Chapter notwithstanding a decree or order for its redemption having been passed; provided that redemp tion has not taken place before the presentation of a petition under this section." For the Collector to pass an order under section 10 it is necessary that there should be a "subsisting usufructuary mortgage". If there was a usufructuary mortgage but it did not subsist on the day a petition i3 moved to the Collector the Collector can not assume jurisdiction under section

10. The word `subsisting' has to be understood again with reference to section 3 of the Act which provides: "After the principal money becomes due and before a suit for redemption is barred, a mortgagor of land not exceeding fifty acres in area or of land the principal money secured by which does not exceed five thousand rupees, may apply to the Collector for an order directing that the mortgage be redeemed and that he be put in possession." If the suit for redemption is barred. the mortgage, whether it is usufructuary mortgage of any other mortgage, comes to an end and in such a situation the mortgage would not subsist. Article 148 of the Limitation Act provides for recovering possession of immovable property mortgaged. It provides a period of 60 year's from the time when the right to redeem or to recover possession accrues for a mortgagor to redeem or recover possession of immovable property from a mortgagee. The right to redeem or to recover possession accrues when the mortgage money becomes due. In a case where there is no specific date mentioned in the terms of the mortgage, the time runs from the date of the mortgage as held by the Judicial Committee of Privy Council in Soni Ram v. Kanhaiya Lal ((1913) 35 All. 227) which was followed in Muhammad Ismail v. Sharafatullah ((1925) 90 I C 763(P C)).

4. Article 148 applied without any exception to every kind of mortgage and a slit against a usufructuary mortgage is also covered by this article. It was so held in Sundar Das v. Fatimul‑Nissa ((1896) 1 C W N 513) which was later affirmed by the Privy Council in Fatimatul Nissa v. Sundar Das ((1900) 27 Cal. 1004 (P C)).

5. It was next contended that the failure to file suit within the period limited under Article 148 bars only the remedy by suit, but it does not extinguish the right, interest or title of the mortgagor, in the mortgaged property with the result that he is not debarred to recover its possession by any lawful method other than by a suit. The argument loses sight of the fact that the Limitation Act deals both with law of prescription as well as with the law of limitation. Limitation, as distinguished from prescription, merely bars the remedy but does not destroy the right. Where a suit or a debt is barred by limitation, the debt nevertheless remains; it is open to the debtor to pay the barred debt and the payment cannot be recalled on the ground of failure of consideration. (See Surat Borough Municipality v. Sarifa Karunntsa (A I R 1939 Bom. 404). In Punjab National Bank Ltd. v. Official Receiver, Karnal (A I R 1940 Lah. 166) it was held that if a time‑barred debt "is repaid after the period of limitation has expired, no action will lie for its recovery on the ground it was barred at the date of the payment, the reason being that though the remedy at law was barred the right in the debt will be subsisted. This principle seems to be also recognised in sections 60 and 61, Contract Act, which gives the right to a creditor to appropriate payments even towards time -barred debts when they are not specifically paid towards other debts." A law of prescription however, fixes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. Such a provision is made in section 28 of the Act which reads as: "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. It unmistakably provides that the bar of the remedy to file a suit for possession of any Property also operates to extinguish the right. In Gunga Gobind hiandul v. The Collector of the

24. Purgunnahs (11 M I A 345) it was held by the Judicial Committee of the Privy Council that if a title to sue for dispossession of the lands belongs, in such a case, to the owner whose property is encroached upon; and if he suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession". Thus where a person who could have sued for possession o property, allows the period of limitation prescribed for the suit to expire, his title is, under this section destroyed. The principle applies equally to suit for possession of mortgaged land. In Fatimatul Nissa v. Sundar Das the suit for usufructuary mortgage was barred by limitation under Article 148 and it was held that right of mortgagor was extinguished.

6. In this view of the matter a petition under section 10 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, will not be competent if the mortgagor has allowed the period of limitation prescribed under Article 148 of the Limitation Act to expire, because his substantive right will in such an event be extinguished in the mortgaged property on the principle of extinctive prescription embodied in section 28 substantively resulting in the creation of a right and title in the mortgagee who may be in its possession. The order passed by the respondent remanding the case to the Collector for the determination of this question is therefore, unexceptionable. The writ petition is dismissed to limine. S. A. H. Petition dismissed in limine.