' WALI MUHAMMAD KHAN, J.---Malik Rais Khan petitioner herein, seeks leave to appeal against the judgment of the Peshawar High Court dated 25-9-1991, whereby his revision petition against the judgment and decree of the Civil Judge dated 8-7-1989 decreeing the suit of the plaintiff/respondent Abdul Manan for the possession through redemption of the suit land, and that of the District Judge dated 16-4-1990 dismissing his appeal against it, was dismissed.
' We have heard Mr. Abdul Qadar Khattak, Advocate, for the petitioner; Mr. Abdul Aziz Kundi, Advocate, for respondent No,1 and have perused the record of the case. The learned counsel for the petitioner argued that after the enforcement of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, the jurisdiction of Civil Courts regarding redemption matters has been impliedly barred. In support of his argument he relied on sections 7 and 17 of the Act ibid. We have carefully considered the provisions of these two sections but fail to understand as to how they exclude the jurisdiction of the Civil Courts to try suits of redemption of mortgages.
Section 9 of the Civil Procedure Code confers exclusive jurisdiction on A the Civil Court to try all suits of civil nature and the instant one suit for redemption of mortgage being a suit for possession through redemption, admittedly is a suit of civil nature and Civil Courts shall have the jurisdiction to entertain it unless their jurisdiction is specifically barred by any statute. The West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (Act XIX of 1964) made provision for the redemption and restitution of certain mortgages of land in the erstwhile Province of West Pakistan.
The relevant sections thereof are reproduced below for determination of the question raised by the learned counsel for the petitioner:-- CHAPTER II--Redemption of Mortgages
3. Petition for redemption.--After the principal money becomes due and before a suit for redemption is barred, a mortgagor of land not exceeding fifty acres in area or of land the principal money secured by which does not exceed five thousand rupees, may apply to the Collector for an order directing that the mortgage be redeemed and that he be put in possession.
Explanation I.--The area of any share in the common land of the village or of a sub-division appertaining thereto and mortgaged with the land; shall not be taken into consideration while determining the area of the land mortgaged.
Explanation II.--This section shall not apply to usufructuary mortgage effect for a specific number of years and intended to terminate without the repayment of any part of its consideration.
4. Deposit of amount due under mortgage.--The mortgagor shall in his application declare what sum is to the best of his knowledge due under the mortgage and deposit such sum with the Collector at the time of making the application.
5. Powers of Collector to order ejectment.--Where the Collector, after hearing the mortgagee and holding such enquiry as may be prescribed, is satisfied that the mortgagor has a right to redeem and has deposited or is prepared to pay the sum which the Collector finds due under the mortgage, he shall make an order directing that the mortgage be redeemed.
6. Directions that the Collector shall make (sic) when ordering ejectment.--(1) Where the Collector makes an order for the redemption of a mortgage, and the whole of the mortgage amount found due has been deposited with him, the order shall direct that such amount be paid to the mortgagee and the excess amount, if any, deposited by the mortgagor be refunded to and the excess amount, if any, deposited by the mortgagor be refunded to him.
(2) Where the whole of the mortgage amount found due has not been deposited, the order for the redemption of the mortgage shall direct--
(a) that a sum which together with the sum already deposited will equal the mortgage amount found due be deposited with the Collector by the mortgagor within thirty days of within such further period as may be specified by the Collector in this behalf;
(b) that on deposit of such amount together with costs, if any, the mortgage shall be extinguished and the mortgagee shall deliver possession of the mortgaged land to the mortgagor, whose title thereto shall be deemed to have accrued from the date of such deposit; and
(c) that the mortgage amount found due by the Collector and deposited by the mortgagor, together with costs, if any, be paid to the mortgagee.
(3) If the mortgage amount and the costs (if any) are not deposited within the period specified in subsection (1), the petition shall be dismissed with costs.
7. Saving of suits to establish rights.-- Any party aggrieved by an order of the Collector passed under section 5 or 6, may institute a suit to establish his rights in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive.
CHAPTER III- Restitution of Mortgages
10. Petition for restitution.--The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.
Explanation.--A mortgage shall be deemed to subsist for the purposes of this Chapter notwithstanding a decree or order for its redemption having been passed; provided that redemption has not taken place before the presentation of a petition under this section.
11. Petition when to be dismissed.--Where the Collector is satisfied that a petition is not in respect of a subsisting usufructuary mortgage not less than twenty years old, or a usufructuary mortgage the period whereof has expired, he shall dismiss the petition, recording his reasons for such order.
12. Power of Collector to declare and enforce orders in favour of mortgagor.--If the Collector finds that the application is in respect of mortgaged land the possession whereof has remained with the mortgagee for a period of not less than twenty years, or is in respect of mortgaged land the term of the mortgage whereof has expired, he shall notwithstanding anything contained in any other enactment for the time being in force or any contract or decree or order of any Court,--
(a) order that the mortgage shall be extinguished without payment of the mortgage money or any part thereof;
(b) in case of an express contract to the effect that the mortgagee shall be entitled to compensation for improvements made by him in the mortgaged land determine the amount of such compensation; and
(c) where the mortgagee is in possession, direct that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deeds, if any, of such land in the possession of the mortgagee be restored to the mortgagor.
13. Effect of order of restitution when compensation is payable.--If the Collector finds that any sum is due to the mortgagee by way of compensation under clause. (b) of section 12, he shall require the mortgagor to deposit the amount in such manner as may be prescribed; and on deposit of the amount he shall declare the rights of the mortgagee extinguished and require the mortgagee to deliver possession of the land to the mortgagor together with all documents of title relating to the land: ' Provided that if a petitioner fails to deposit the amount within six months, his petition may be dismissed.
17. Jurisdiction of Civil Court barred.--No Civil Court shall have jurisdiction to entertain any claim or enforce any right under a mortgage declared extinguished under this Chapter or to question the validity of any proceedings under this Chapter.
The above provisions of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 hereinafter to be referred as the Act, make it amply clear that it provides remedies to the mortgagors for summary and quick disposal of application for redemption of certain specified types of mortgages on deposit of mortgage amount before the actual order of redemption as per sections 3 to 9 of Chapter II of the Act. Under section 7 thereof the orders of redemption are final so long as any party aggrieved by the same does not institute a suit to establish his rights in respect of the mortgage. Thus it is obvious that section 3 of the Act affords an additional remedy to the mortgagor to redeem the type of mortgages mentioned in section 3 through an application and does not exclude the jurisdiction of the Civil Court to try regular suits of redemption if the mortgagor chooses that remedy.
Chapter III of the Act deals with the restitution of mortgages which empowers the Collector to restitute subsisting mortgages not less than twenty years old or the usufructuary mortgage the period of which has been expired, without payment of mortgage charge. This is a specific remedy which can only be availed of by mortgagor through a petition before the Collector and as the mortgagors cannot enforce this remedy in the Civil Court, obviously there is no clash of jurisdiction between the Collector and the Civil Court. The orders of the Collector in this Chapter are open to appeal and revision before the hierarchy of forums constituted under the Act but subject to their decision the orders of restitution are find and the jurisdiction of Civil Court is barred to entertain any claim or enforce any right under a mortgage declared extinguished under the said Chapter or to question the validity of any proceedings thereunder, under section 17 of the Act. It follows that a mortgagor, if he wants the restitution without payment of the mortgage charge and the other conditions mentioned in the Chapter III are satisfied, he can seek redress before the Collector but if he is ready to pay the mortgage amount or the conditions prescribed are not fulfilled viz., it is not a usufructuary mortgage or the mortgagee has not remained in possession for a period of twenty years, he can adopt the normal course of redemption under the Transfer of Property Act before the Civil Court. Needless to mention that the order of the Collector can also be questioned before the Civil Court on the ground of want of jurisdiction, as orders without jurisdiction are nullity in the eye of law which can be questioned in the Civil Court. Since there is no express provision in the Act barring jurisdiction of the Civil Court to entertain suits for redemption of mortgages, the provision of section 9 of Civil Procedure Code remains unaffected and the Civil Courts have the jurisdiction to entertain and dispose of suits for redemption under the Transfer of Property Act. Consequently, the judgments of the lower forums decreeing the suit of the plaintiff/respondent for redemption of the mortgage land against the defendant/petitioner do not suffer from any legal infirmity or jurisdictional error.
' The instant petition is, accordingly, dismissed and leave to appeal is refused.