1987 PLP 1495 (SCMR)

SAAD SAOOD JAN, J.‑‑This petition for special leave to appeal is directed against the order dated 22‑4‑1987 of a learned Single Judge of the Lahore High Court.

2. One Ladha was an occupancy tenant in some agricultural land. By a registered deed dated 19‑2‑1953 he mortgaged his occupancy rights with possession in favour of the petitioner for a sum of Rs.4,

000. Subsequently, he gifted his tenancy to the respondent. The gift was an oral one and was evidenced by a mutation. Many years later, he sold his occupancy rights to the petitioner for a sum of Rs.30,

000. The respondent filed a suit for a declaration to the effect that in view of the gift made in his favour the sale of occupancy rights by Ladha to the petitioner was null and void. By way of consequential relief he sought delivery of possession of the land. The suit was resisted by the petitioner. The trial Court decreed the suit and its decree was affirmed by the District Judge and the High Court. The petitioner then filed an appeal by special leave in this Court but it met the same fate. He later sought review of the judgment of this Court but this was declined.

3. The respondent initiated proceedings for the execution of the decree obtained by him against the petitioner. These were contested by the petitioner. His case was that as mortgagee with possession he was entitled to retain possession of the land till the mortgage was redeemed. The executing Court overruled his objection. He preferred an appeal before the District Judge but without any success. He then filed a revision petition in the High Court. The learned Single Judge disposed of the revision petition with the following direction:‑ "In view of what has gone above, I hold that the mortgage in dispute still subsists. As the respondent is ready to pay the mortgage money amounting to Rs.4,000, I direct him to deposit the same with the learned executing Court (Senior Civil Judge, Gujranwala) within fifteen days. If he does so, the learned executing Court shall execute the decree without bothering about the mortgage in question; and the amount as deposited will be withdrawn by the petitioner However, if the mortgage money is not deposited within the above period, the decree shall not be executed until the mortgage is redeemed or its restitution is ordered." The petitioner seeks leave to appeal from this order.

4. In support of this petition it is contended that after the validity of the gift in favour of the respondent had been upheld the petitioner's rights as mortgagee with possession stood revived. In the course of the execution proceedings it was not open for the learned Single Judge to direct the redemption of the mortgage. The order made by him and the effect of depriving the petitioner of the defences which he could have legitimately taken had the respondent filed a separate suit for redemption of the mortgage. In this context he particularly referred to Rule 2, Order II, Code of Civil Procedure.

5. The contention raised on behalf of the petitioner requires examination. Leave to appeal is granted. Security for costs in the sum of Rs.2,

000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if any. A.A./H‑14/S Leave to appeal granted.