Suit for redemption

2023 MLD 1502 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 58(d) & 60Limitation Act (IX of 1908), S. 20 & Art.148Suit for redemptionLimitationUsufractuary mortgageScopeCause of actionScope

Suit instituted by the petitioners/plaintiffs for the redemption of property mortgaged more than a century ago was dismissed by the Civil Court on the ground of limitation as the same was not filed within sixty years of mortgage

Appellate Court maintained the decree and judgment passed by the Trial Court

Validity

Record revealed that the predecessor of the petitioners/ plaintiffs had mortgaged the suit-property through mutation in the year 1895 in favour of the predecessor of the respondents/defendants

Suit-property was in possession of the respondents /defendants through inheritance, however, the revenue record had confirmed the ownership of the petitioners/plaintiffs while the respondents/defendants were recorded as mortgagee in the column of cultivation throughout

Suit of petitioners/plaintiffs had been concurrently dismissed on the ground that the same was instituted after about 111 years and thus, was hopelessly barred by time in view of S. 148 of the Limitation Act which provided sixty years for institution of redemption suit

Respondents/ defendants were enjoying the possession of the suit-property since inception of the mortgage and such mortgage, legally speaking, was usufractuary mortgage in terms of clause (d) of the S. 58 of the Transfer of Property Act, 1882

Section 60 of the Transfer of Property Act, 1882 provided right of mortgagor to redeem the mortgaged property, however, S. 20 of the Limitation Act, 1908 stipulated that the receipt of produce during the subsistence of mortgage gave a fresh cause of action to the mortgagor on the receipt of produce of every harvest and the same was deemed acknowledgment

High Court observed that the claim of the petitioners/plaintiffs for redemption was well maintainable, as they (petitioners/plaintiffs )were owners of the suit property while the respondents/ defendants were in possession of the same as mortgagee

High Court set aside decrees and judgments passed by both the Courts below; passed a preliminary decree in favour of the petitioners/plaintiffs and against the respondents/defendants for redemption of mortgaged property

Civil revision was allowed, in circumstances.

2021 CLC 68 PESHAWAR-HIGH-COURT Judicial Precedent

S.60Limitation Act (IX of 1908), Art.158Suit for redemptionLimitationLaches, doctrine ofApplicabilityPlaintiffs were mortgagors of suit property and they had statutory right of redemption

Possession of mortgagee over the property would remain as mortgagee and would not stand converted into possession as owners thereof

Any clog on redemption of the mortgage would be invalid being violative to law and equity

Once a mortgagee was always a mortgagee

Where disputed transaction was one of the mortgage and not the sale then refusal to get the property redeemed would become recurring wrong on the part of mortgagee for which principle of laches was not attracted

When matter was referable to the law of limitation then question of laches would loose significance

No period of limitation did run against the mortgagors

Mortgaged property could be redeemed by the mortgagor at any stage without mischief of law of limitation barring redemption after the passage of sixty years

Courts below had properly exercised the jurisdiction vested in them

Revision was dismissed in limine, in circumstances.

1947 PLD 322 PRIVY-COUNCIL Judicial Precedent

S. 3-Suit for redemp­tion-Mortgage was not for fixed term-Plaintiff should prove that suit is within time.