1985 PLP 787 (CLC)

Raja and others applied for redemption of the land mortgaged somewhere in the year 1893 in favour of Amir-ud-Din. Original mortgagors and the mortgagee have expired leaving behind their successors-in- interest in the field. Petition for redemption was dismissed by Assistant Commissioner/ Collector, Chiniot vide order, dated 24-10-1982. Learned Collector primarily dismissed the petition on the ground that the petition for redemption has not been presented within a period of 60 years from the date of the making of mortgage. An appeal was filed by the mortgagors before the learned Additional Commissioner (Revenue), Faisalabad Division. Vide order, dated 6-7-1983, the learned Additional Commissioner, accepted the appeal, set aside the order, dated 24-10-1982 of Collector Chiniot and ordered that the mortgaged land be restituted to the mortgagors without payment of mortgage money. Mst. -Ferozan and others assailed the order, dated 6-7-1984 of Additional Commissioner (Revenue) in revision before learned Member, Board of Revenue, Punjab, Lahore. Conclusions arrived at in the order passed in revisional juris diction are found in paragraph 3 of the order, dated 24-1-1984. The learned Member observed:- "I have heard the learned counsel for the appellants and considered the facts of the case. The learned Additional Commissioner had accepted the application for redemption on ground that there was novation of mortgage in 1919 and 1923 and, as such, the application for redemption was well within the prescribed limit of sixty (60) years. The learned counsel for the appellants, however, contends that there was no such novation and the mortgage had continued from 1893 without any fresh acknowledgment by the parties. In view of the contention being made by the learned counsel for the appellants, I consider it to be a fit case which should be re-enquired and decided in remand The orders of the Additional. Commissioner are accordingly set aside in appeal and the case remanded to the Assistant Commissioner/Collector for fresh decision." It is evident that the case for redemption has been remanded for fresh decision vide order, dated 24-10-1984 passed by the learned Member, Board of Revenue. Remand order is under question, at the instance of the Raja and others mortgagors, in constitutional jurisdiction, prayer to be declared impugned order, dated 24-1-1984 to have been passed without lawful authority, with a further prayer that the order passed by Additional Commissioner on 6-7-1983 restituting land be maintained. Ch.Muhammad Aslam Chatha, Advocate, learned counsel for the writ petitioners, has been heard, it is contended by him that the question of limitation, had been rightly decided by the Additional Commissioner in appeal. The learned Member, Board of Revenue without any sufficient material had interfered and remanded the case, obviously without any legal justification.

2. Mortgagor, which term, includes his assignee and representative in-interest can apply for redemption of the mortgage, after the principal money under the mortgage became due and before a suit for its redemption was barred by time. The petition for redemption, is made under section 3 of the West Pakistan Act XIX of 1964. Restitution of mortgage is regulated by Chapter III of the above, noted Act. In any case, whether A it be the petition for redemption or for restitution of the mortgage, it has to be presented within time, i.e. before expiry of the period of 60 years provided under Article 148 off the Limitation Act, 1908. Precisely, before redemption; restitution could be ordered, it has to be found as a fact that the petition related to a subsisting mortgage.

3. In the case under consideration, the Collector had rejected the petition on the ground of bar of limitation. This order was reversed in appeal by the Additional Commissioner (Revenue) and restitution was ordered, free of charge. The learned Member, Board of Revenue interfered and remanded the case for decision afresh including question of limitation which was, so to say, the primary question for decision before determining the entitlement of Raja and others to seek redemption/restitution of the land mortgaged by their predecessors. The question of limitation had not been dealt with by Additional Commissioner (Revenue) in a proper manner. Consequently remand, has been, rightly, ordered by the learned Member, Board of Revenue. The controversy Collector, with the assistance of the material made available to him by the parties will decide the question limitation and the right of the mortgagors to claim redemption/ restitution of mortgaged land as the case maybe. The matter, therefore, by the impugned order has in case the decision subsisting at the time, petition was made for its redemption/ restitution, is a mixed question of fact and law to be resolved on the evidence adduced by the parties. In any case, since the matter has been remanded to a Tribunal, of competent jurisdiction for decision afresh on all the points raised including that of limitation, it is not a fit case for interference at this stage of proceedings under extraordinary jurisdiction of this Court. Writ petition has, therefore, no merit. It fails and is dismissed in limine. M.B.A. Petition dismissed.