1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal through leave of this Court by an objector to the execution of a decree for possession, is directed against his failure upto the High Court to block the execution. The High Court disposed of his Civil Revision by a direction that the decree-holder shall pay Rs.4,000 as mortgage money to the appellant as a mortgagee.
2. The facts noted for grant of leave to appeal are that one Ladha was an occupancy tenant. He by a registered deed, dated 19-2-1953 mortgaged his occupancy rights with possession in favour of the appellant for a sum of Rs.4,000. Subsequently he gifted the same rights of tenancy to the respondent. The gift was oral but was subsequently evidenced by a mutation. This mutation was later reviewed to the respondent's dis-advantage by Revenue Authorities. The -donor, Ladha is said to have sold the same gifted rights to the appellant for a sum of Rs.30,000. The respondent challenged this double deal through a suit seeking declaration that the sale was null and void and would not effect his rights as a donee. By way of consequential relief he had also sought delivery of possession of the land. The trial Court decreed the suit and that decree was affirmed upto this Court in appeal by special leave. The review application filed by the appellant in this Court was also dismissed. During the execution proceedings the appellant raised. Contest as an objector that his case was that as a mortgagee with possession he was entitled to retain possession of the land till the mortgage was redeemed". This objection has been overruled upto the High Court. However, in the impugned revisional judgment the High Court gave following partial relief to the appellant in so far as the mortgage amount is concerned:-- "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Court shall execute the decree without bothering about the mortgage in question; and the amount as deposited will be withdrawn by the petitioner.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."
3. While granting leave to appeal this Court noted the argument that after the validity of the gift in favour of the respondent had been upheld the appellant's right as mortgagee with possession stood revived. That being so in the course of execution proceedings it was not open for the High Court to direct the redemption of the mortgage. The order made by it had the effect of depriving the appellant of the defences which he could have legitimately taken had the respondent filed a separate suit for redemption of mortgage. In this context reliance was also placed on Rule 2, Order 11 of the C.P.C.
4. Learned counsel for the appellant has reiterated the afore-noticed point on which leave to appeal was granted.
5. In reply learned counsel for the respondent/decree-holder has stated that the mortgage stood redeemed long ago when the appellant by his own conduct purchased the suit land. That transaction by its own operation terminated the mortgage and thus it stood redeemed. Not only this he relied on a mutation of redemption of mortgage dated 6-6-1970 which was sanctioned contemporaneously at the time when the sale mutation was sanctioned. Therefore, as argued, the mortgage was non-existent. There could not be any further proceedings for redemption of mortgage.
6. The argument being formidable learned counsel for the appellant could not advance his case any further than to say that the said mortgage was revived ,when on the pleading of the respondent/decree-holder the sale in favour of the appellant was annulled. It is doubtful that in the circumstances of this case the mortgage having been redeemed on a definite date by a definite act, any dormant element was still left in it to be revived after a lapse of several years, when the decree in favour of the respondent was passed. Thus, this appeal merits to be dismissed on this ground alone.
7. However, the appellant's plea with regard to the return of the mortgage money having been allowed by the High Court, that can notwithstanding the above finding, be upheld on equitable ground; namely, that the appellant should not be deprived of the mortgage money.
8. The further argument that the appellant has been deprived of his possible defences against an action for redemption of mortgage is of no force. Firstly, on account of the aforestated reasons.
9. And secondly, the redemption of mortgage mutation, dated 6-5-1970, having affected the appellant's claims based on the mortgage, he never challenged it; not even after the sale in his favour was annulled. It remained in the field throughout against him. Though in so far as it partially and indirectly affected the respondent, he had to the extent necessary in that behalf only, sought and obtained relief in the earlier round of litigation. Thus, the appellant's own conduct in the entire dispute and resultant litigation spread over a quarter century, is also a serious bar to any further relief than whale is granted to him in the impugned judgment.
10. In so far as the question of availing any additional so-called right of defence against the redemption of thus non-existent mortgage is concerned, he lost the same on the attestation of the redemption mutation which achieved finality without challenge from him in so far as it effected his rights. And in any case in the present suit which was also amongst others for possession, the appellant did not raise any defence to the prayer for possession as is being claimed in support of this appeal now. Accordingly, the appellant cannot be allowed to agitate any such plea which he could have raised in the respondent's suit for possession; now as an objection in the execution application after the decree for possession has achieved finality even upto this Court.
11. Looked at from whatever angle there is no force in this appeal. The same, accordingly, is dismissed.
12. There shall be no order as to costs.