P L D 2005 Peshawar 201 (PLP)

The judgments and decrees dated 22-9-1999 and 16-7-2003 passed by learned Civil Judge and the learned District Judge, Karak have been called in question by Muhammad Noor and others through this Civil Revision petition.

2. Short facts leading to the filing of this revision petition are that Marwat Khel, son. of Issa Khel etc. had filed an application before Assistant Commissioner/Collector Sub-Division Karak on 13-9-1987 for redemption of land bearing Khasra No. 246-1342 (old Khasra No.165-705) Khata No.529 measuring 6 Kanals, 15 Marlas and Khasra No.1132-1346 (old Khasra No.671-708) Khata No.457 measuring 20 Kanals, 3 Marlas in Mauza Mitta Khel as the said land was mortgaged vide Mutation No. 4097 dated 29-4-1935 and Mutation No.5607 dated 7-7-1944. On the conclusion of the trial the learned Collector ordered the redemption of the suit land and the mortgaged money deposited by Marwat Khel etc. was ordered to be handed over to the then respondents. The necessary entries were ordered to be made in the Revenue Record in terms of the decision of the Collector. The present petitioners had duly appeared before the learned Collector and had fully participated in the proceedings. The order of the Collector was amenable . to appeals and revisions but no appeal or revision was filed and as such the order of the Collector dated 20-5-1991 attained the finality.

3. Subsequently in November 1991 the petitioners filed a civil suit wherein a declaration was sought to the effect that the judgment dated' 20-5-1991 passed by the Collector be declared illegal and the execution proceedings pursuant to the' said judgment be also declared so and that the plaintiffs-petitioners be not dispossessed from the land which was the subject matter of the judgment of the Collector.

4. The suit of the petitioners was hotly resisted by the respondents. Written statement was duly filed and the trial proceeded on contentious issues born out of the rival pleadings. The parties adduced their evidence in support of their respective contentions. At the end of the trial on evaluating the evidence of the parties and on the analysis of the legal position the suit of the petitioners was dismissed by the learned Civil Judge on 22-9-1999. Appeal was filed by the petitioner ventilating their grievances against the judgment and decree of the trial Court but the same also could not earn any success for the petitioners and was dismissed. Hence this revision petition.

5. The learned counsel appearing for the petitioners has raised and argued the contentions that the order of Collector dated 20-5-1991 is simply to the effect of redemption of land and it does not contain any direction about the dispossession of the petitioners from the suit property, therefore, execution proceedings for the dispossession of the petitioners would be illegal. It was further contended that the above referred judgment of the Collector does not specify the land which was mortgaged and redeemed. He also urged that the two Courts below have not properly appreciated the controversy in its true perspective and maintained that the suit was earlier decreed by the trial Court on 28-7-1993 but the same was set aside in appeal and the case was remanded. He concluded that at the post-remand stage the two Courts below have landed into error manifest by dismissing the suit and the appeal of the petitioners.

6. On the other hand the learned counsel appearing on behalf of the respondents has argued that in the very initial proceedings before the Assistant 'Commissioner/Collector the petitioner had appeared and contested the matter but the learned Collector on appreciating the evidence and record in view of the relevant law passed judgment in favour of the respondents and the property was redeemed. The redemption amount was also paid by the respondents which was directed to be reimbursed to the petitioners. It was urged that admittedly no appeal was filed against the order of the Collector although clear cut provision for filing of appeal and revisions are contained in sections 5, 6, 14 and 15 of the West Pakistan Redemption and Restitution of Mortgaged Land Act XIX of 1964. Thus the order of the Collector dated 20-5-1991 attained finality. It was also submitted that section 17 of the Act eloquently ousted the jurisdiction of the Civil Court. Owing to its relevancy the said provision is reproduced below:-- "

17. Jurisdiction of Civil Court barred.

No civil Court shall have jurisdiction to entertain any claim or enforce any right under a mortgage declared extinguished under this Chapter or to question the validity of any proceedings under this Chapter."

7. I have heard and concentrated on the rival arguments of the learned counsel for the parties. It is an undisputed feature of the case that the petitioners failed to challenge the judgment of the Collector-dated 20-5-1991 by way of any appeal or revision which was manifestly available to them. The inescapable outcome of the above situation is that the petitioners were legally under the obligations of the judgment of the Collector. With regard to the ouster of the jurisdiction of the Civil Court the learned counsel for the petitioners could not offer any resisting arguments. A conjoint reading of Act 19 of 1964 referred above makes it clear that on the payment of the mortgaged money, as is paid in the instant case, the mortgage shall stand extinguished and the property is to be restored to the mortgagor.

8. The outcome stemming from the above discussion is that the judgment dated 20-5-1991 has attained finality and the same could not be challenged before the Civil Court in view of the provision of law existing in the statute book in form of section 17 referred above. If at all the petitioners had any objection the same should have been agitated at the stage of execution because all the proceedings pertaining to the execution are conducted in accordance with Order XXI, C.P.C. read with other relevant provisions of the same Code., Resultantly finding no force in this Civil Revision petition it is dismissed with no order as to costs. S.A.K./431/P Revision dismissed.