' MIAN SAQIB NISAR, J.---The dispute between the parties relates to a House bearing No, 468/A with the land underneath measuring 13 Marlas, 205 Sq. Ft., situated in Ghulam Muhammad Abad, Faisalabad; the suit of the respondents against the appellant for the foreclosure of the appellant's right of redemption of the aforesaid house, was dismissed by the learned trial Court vide judgment and decree, dated 6-11-2003 but on their appeal, which was accepted on 11-10-2005, the judgment and decree of the trial Court was reversed and the suit has been allowed. Hence this appeal.
2. Briefly stated the facts of the case are that on 19-10-1992, the parties executed a registered mortgage deed with the stipulation that the respondents have paid a sum of Rs,13,00,000 to the appellant as a loan and for the purpose of security, the house mentioned above, has been mortgaged with the respondents, with the further condition that if the appellant does not make the payment of the mortgage money till 31-1-1996, the respondents shall become the absolute owners of the property and thus would not be entitled to seek the possession and also the sale in their favor on the expiry of said date; as the mortgage money was not paid to the respondents, thus on 14-2-1996, they brought a suit for the foreclosure in terms of the mortgage deed, dated 19-10-1992.
It may be pertinent to mention here that prior to the above, the appellant had already instituted a suit on 31-1-1996, against the respondents, not enforcing their right of redemption, or denying the execution of the instrument, but challenging the mortgage deed, on the grounds that it is without consideration; it was executed with an object to secure the respondents' interest in some business transaction inter se the parties and that the respondents are obliged to render the accounts in view of the said transaction. In the present suit of the respondents, the appellant set out the defence in line with the cause of action of his own suit. Be that as it may, in both the cases, issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree of even date i,e, 6-11-2003, dismissed the suits of both the parties; aggrieved, they filed appeals; the appeal of the respondents has been accepted, while that of the appellant is dismissed through a single judgment, dated 11-10-2005, which has been impugned by the appellant but only to the extent of the decree of the respondents' suit and not regarding the two decrees of the Courts below through which, their suit was dismissed.
3. Learned coup for the appellant has argued that the mortgage deed is without consideration and in this behalf, has referred to the statement of one marginal witness of the document, who has appeared asD.W.1; it is also submitted that in view of the provisions as contained in section 60 of the Transfer of Property Act, 1882, there cannot be any clog upon the equity of redemption and the mortgagor can seek the redemption of his mortgaged property within a period of limitation as provided by the law; to support his arguments, he has relied upon the judgment reported as Mureed Khan, v. Muhammad Khan and 2 others (PLD 1971 Peshawar 28) and Sideman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others (PLD .1971 Lahore 77).
4. On the contrary, the learned counsel for the respondents has argued that according to the concurrent findings recorded by the two Courts below, the statement of D.W.1, has been disbelieved; besides, the appellant has admitted the execution of the mortgage deed, thus he is precluded in law to lead oral evidence to controvert the contents of the document. It is also submitted that the appellant had never challenged the document on account of lack of consideration, etc. i,e,, till the last date fixed for the payment of the mortgage money i,e, 31-1-1990, with the obvious object that the appellant wanted to wriggle out from the legal consequences of the mortgage deed; it is also stated that same issues were involved in the suit of the appellant, which has been dismissed by both the Courts below and no other challenge to the above has been made, therefore, the judgments and decrees in the suit of the appellant, shall operate as res judicata in the present matter, bringing the case within the mischief of section 11, C.P.C. Lastly, it is argued that the case in hand is not covered by the provisions of section 60 of the Transfer of Property Act, rather by section 67 thereof.
5. I have heard learned counsel for the parties. As far as the question about the execution of the document is concerned, this is not disputed by the appellant; the appellant's case at the best is that this document was executed by the parties as security for some business transaction but he has failed to prove any business connection between them calling fog the execution of the mortgage deed; the statement of D.W.1, who happens to be a marginal witness of the mortgage deed, has been disbelieved by the two Courts below and on my own reading of his statement, I have no different conclusion to draw.
6. In the case in hand, there are two legal issues, which needs to be attended, firstly, whether the judgments and decrees of the Courts in the suit of the appellant, which have not been challenged by him further, operate as res judicata in the present case, suffice it to say that there is nothing on the record to ascertain, if the issues involved the present appeal, were directly and substantially in issue hi the suit of the appellant, therefore, no comparison can squarely be made within the contemplation of section 11, C.P.C., however, the appeal is liable todefeat on the ground that the appellant in defence to the present case, has never accepted the mortgage deed to be a valid document, rather he challenged it validly mainly for the lack of consideration, which he was not able to prove. It is not his case that the suit by him was for the redemption of the property within the .Purview of section 60 of the Transfer of Property Act. The appellant never offered to make the payment or tender the mortgage money before or after the due date. Therefore, the judgments cited by the appellant's counsel are not attracted to the facts of the case. On the contrary, the respondents brought the suit for the foreclosure after the said date, which squarely meets the condition of section 67 of the Transfer of Property Act, may be they as a precaution added the alternate relief also but this does not mean that their right of foreclosure shall be prejudiced in any manner. This second appeal thus has no merits and the same is hereby dismissed.