' NISAR HUSSAIN KHAN. J.--- Petitioner has called in question the judgment of learned District Judge, Karak, dated 9-5-2006, whereby accepting review petition of the respondent, earlier judgment of the same Court, dated 2-10-2004, was set aside and judgment of learned Trial Court, dated 13-6- 2002, was restored.
2. The resume of the facts, forming the background of instant petition is that, respondent Khani Jan, filed a suit for redemption and possession of the suit property, which was partially decreed in his favour, on 13-6-2002, against which, petitioner and respondents, both filed appeals. The learned District Judge, after hearing the parties, dismissed the appeal of the plaintiff whereas accepted the appeal of the defendants on 2-10-2004 and suit of the respondent was dismissed by holding that it was time-barred. The plaintiff-respondent, filed review petition before the same Appellate Court, which was accepted and the earlier judgment dated 2-10-2004, was set aside and that of learned.
Trial Court, was restored, whereby in suit of the respondent preliminary decree was passed.
3. Learned counsel for the petitioner argued that firstly, suit of the respondent for redemption of the property was beyond the period of 60 years, so it was liable to be dismissed being time-barred, and secondly. Learned Appellate Court, could not have examined .The additional evidence to set aside its own judgment, in review jurisdiction, which is an illegality and material irregularity, which may be set at naught, in the revisional jurisdiction. Learned counsel argued that petitioner is owner in the suit property and mortgagee to the extent of shares of the respondents. He maintained that original mortgage was much prior to year 1886-87. While suit for redemption, was filed in the year 2000, which was hopelessly time-barred, as the period of limitation, prescribed for redemption, under Article 148 of the Limitation Act. 1908, is 60 years. Thus, the learned District Judge, was not justified to pass a decree of redemption, beyond the period, prescribed by Limitation Act. Hence, the impugned judgment is liable to be set aside.
4. Conversely, learned counsel for the respondents argued that period of limitation, would start against the respondents from the year 1958, when the suit property was redeemed by the petitioner/comortgagor as a whole including the share of the respondents, hence. The suit of the respondent was well within time. He maintained that it being a usufructuary mortgage can successfully be redeemed by the respondent. That learned Appellate Court, has rightly reviewed its own order by considering the mutation, which was not taken into consideration by the Appellate Court while deciding the appeal. Hence, this revision petition is liable to be dismissed.
5. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.
6. It is undisputed that suit property was mortgaged in the year 1886-87, which was later on, redeemed by the petitioner in the year 1958, including the share of the respondent-plaintiff and possession of the property is with the petitioner, as owner to the extent of his own-share, and as mortgagee to the extent of the share of the respondents, on the principle of subrogation, as enshrined in section 92 of the Transfer of Property Act, 1882. The decree passed in favour of the respondent for redemption of the suit property, was set aside by the learned Appellate Court in its earlier judgment dated 2-10-2004, on the ground that original mortgage qua the suit property was effected in the year 1886-87, after which, another mortgage Mutation No.1235, was attested on 18- 11-1894 which may be considered as an acknowledgement in terms of section 19 of the Limitation Act, 1908 and thereafter, no intervening mutation was attested, till Mutation No.7962, dated 7-12- 1958, qua sale of the mortgagee rights. Having no intervening evidence with regard to acknowledgement of renovation of the mortgage, since 1894, the period of 60 years, would expire on 18-11-1954 i,e, four years before the attestation of Mutation No.7962. So in view of this factual position, the suit of the plaintiff-respondent, was declared as time-barred, in terms. Of Article 148 of the Limitation Act and was thereby dismissed. After sensing that material evidence, available on the record, was not considered by the learned Appellate Court qua intervening Mutation No.5685 dated 15-3-1945, reference of which was available in extract of Record of Right, pertaining to year 1939-40, the respondent-plaintiff, filed a review petition.
7. It appears from the record that entry with regard to sale of mortgagee rights vide Mutation No.5685, dated 15-3-1945, was available in the Revenue Record, but was not considered by learned Appellate Court. To do complete justice, learned District Judge, examined ADK as CW.1, who produced the said mutation as Exh.CW.1/2, without objection froth the other side. It was a material evidence which was overlooked by learned Appellate Court, in its earlier judgment, the original record of which was also requisitioned and exhibited. The mutation attested on 15-3-1945, is an official document, and has been produced from a proper custody, so it carries presumption of truth, being a thirty years old document, in terms of Art.100 of Qanun-e-Shahadat Order, 1984, which has correctly been relied upon by learned Appellate Court. After attestation of this mutation, the limitation would re-start from the date of its attestation on 15-3-1945, whereas, the instant suit has been filed in the year 2000, which is well within time, as Mutation No.5685 dated 15-3-1945, is an acknowledgment in terms of section 19 of the Limitation Act, before the expiry of the period prescribed for suit of redemption.
8. Besides that, possession of the suit property is with the petitioner, as per evidence on the record and this fact is also admitted by the learned counsel for the petitioner, at the bar, which means that it is a usufructuary mortgage and the profit of the property is being enjoyed by the petitioner.
When mortgagee is in possession of the mortgaged property and enjoying the usufruct thereof, the receipt of such usufruct, is to be treated as payment to the mortgagee for the purpose of limitation, irrespective of the intention of the parties, receiving such usufruct, in terms of section 20 of the Limitation Act, which is reproduced as below:--- S.20 "Effect of payment on account of debt or of interest on legacy.--- Where payment on account of debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made] [Provided that. ... An acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment].
' Effect of receipt of produce of mortgaged land.
(2) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment for the purpose of subsection (1)".
The bare reading of section 20 of the Limitation Act and particularly, subsection (2) thereof, would make it abundantly clear that when mortgagee is in possession of the mortgage property and receives the usufruct, it shall be deemed not only the payment of mortgage money, but it would be an acknowledgement, as well, and receipt of every such usufruct, would give a fresh cause of action on each successive harvest for the purposes of computation of limitation. In this regard, reference can be made to a case titled, "Abdul Haq v. All Akbar and others" (1999 SCM R 2531). In light of the above discussion, it is held that the suit of the respondent is well within time from this aspect, as well.
9. Before dilating upon the question that whether the Appellate Court was justified to set aside its own judgment by exercising powers of review, it would be advantageous to re-produce section 114, C.P.C., as below:-- "S.114 [review.--- (1) Subject as aforesaid, any person considering himself aggrieved:--
(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred. .
(b) By a decree or order from which no appeal is allowed by this Code, or
(c) By a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
(2) Nothing contained in subsection (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court]."
The bare reading of the section suggests that any person aggrieved of an order or decree. Can file review petition before the same Court, whether right of appeal against the same is provided in the Code or not. While Order XLVII, rule 1, C.P.C., is the elaborated form of review jurisdiction, which for convenience is re-produced as under:--- "1. Application for review of judgment.--- (1) Any person considering himself aggrieved:-
(a) _By a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b)- By a decree or order from which no appeal is allowed, or (c) By a decision on a reference from a Court of Small Causes, ' And who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires, to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an_ appeal by some other party except where the ground of such appeal is common to the applicant, and the.Appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
10. These provisions of C.P.C., enunciate that on account of some mistake or error, apparent on the face of the record or for any other sufficient reason, the aggrieved party may apply for review of the judgment to the Court, which has passed the decree or made the order. In the instant case, as it has been discussed earlier that the Revenue Record available before the Court, was indicative of the fact that there was a reference of Mutation No.5685 dated 15-3-1945, in Jamabandi for the year 1939-40, being Exh..PW.2/1, which escaped the notice of learned Appellate Court. This was the mistake and error, apparent on the face of the record, which resulted into a judgment against the respondent and dismissal of his suit, causing grave miscarriage of justice. Had this 'entry, floating on the record, been earlier considered by the Appellate Court, the result would have, certainly, been different. The examination of ADK by the Appellate Court, during the pendency of review petition, was just for its own satisfaction to further clarify the entry recorded in Jamabandi of 1939-40.
Section 114 and Order XL VII, rule 1, .C.P.C., confer a statutory right on the party, aggrieved from the order or judgment of a: Court, significance of which can be seen from the simple fact that it has been made a substitute of right of appeal, as well. Thus in ID view of this emphasis, it cannot be taken so lightly, particularly, when a substantial right of a party is involved. The learned Appellate Court has committed no illegality or any material irregularity in exercise of its review jurisdiction for rectifying its own error. Consequently, this revision petition being devoid of merits is hereby dismissed.