SAEEDUZZAMAN SIDDIQUI, J.---The above appeal with leave of this Court is directed against the judgment of a learned Judge in Chambers of Peshawar High Court, Abbottabad Bench, dated 16- 11-1991. By the impugned judgment, the learned Judge in Chambers refused to interfere with the judgment and decree granted in favour of respondents by the 1st Appellate Court as a result of reversal of the judgment and decree of the trial Court in the case.
2.Leave was granted in the case to consider whether in view of the law: laid down by this Court in the case of MaqbooI Ahmad v. Hakoomat-e- I A Pakistan 1991 SCM R 2063 the decree granted in favour of the respondents was a valid one?
3. The relevant facts of the case are that land bearing Khasra Nos.34 and 134 measuring 41 Kanals and 18 1`Iarlas was mortgaged in favour of the appellants in the year 1904. The respondents instituted a declaratory suit on 21-2-1984 in the Court of Civil Judge, Mansehra, alleging that the suit land was mortgaged in their favour in the year 1904/1905 and more than a period of 60 years has elapsed but the mortgagor had failed to take steps for redemption of the land. They, accordingly, claimed that they were entitled to a decree that they have become owners of the suit land as a result of expiration of the period of limitation prescribed under the law for redemption of mortgaged property. The suit was resisted by the respondents and on the basis of the pleadings of the parties, following issues were framed:--- "(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is maintainable in it present form?
(3)Whether the suit is bad account of non-joinder of necessary party?
(4) Whether the defendants Nos.1 to 4 have filed an application for redemption in the Court of Revenue EA.C., if so, to what effect?
(5)Whether the plaintiffs are entitled to the declaration as prayed for?
(6)Whether the plaintiffs are entitled to the decree of perpetual injunction as prayed for? .
(7)Relief."
4. The trial Court after recording evidence of the parties held under Issue No.4 that prior to the institution of the civil suit by the appellants, the respondents had applied to the Revenue Officer/Collector on 14-11-1983 for redemption of the suit property, which was within 60 years from the date of mutation of the land in favour of the appellants and as such it could not be said that the respondents had failed to assert their right of redemption of the property within prescribed period of 60 years. It was also found by the trial Court that the suit is its present form for declaration under section 42 of the Specific Relief Act was not maintainable. As a result of the above findings on Issues Nos.2 and 4, the suit instituted by the respondents was dismissed. On appeal, the Additional- District Judge, Mansehra, reversed the findings of the trial Court on Issue No.4 and held that the application filed by respondent No.1 before the Revenue authorities for redemption of the mortgaged property on 14-11-1988 was beyond the period of 60 years prescribed under the law. As a result of the above findings, the 1st appellate Court reversed the judgment and decree of the trial Court. The learned Judge in Chambers declined to interfere in the revisional jurisdiction with the judgment and decree passed by the 1st appellate Court against which the appellants obtained leave to appeal from this Court, as aforesaid.
5. It is common ground between the parties that the provisions of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 (hereinafter to be referred to as `the Act') applied to the present case. Under section 3 of the Act, a mortgagor of the agricultural land which did not exceed 50 acres in area or which was mortgaged for an amount not exceeding five thousand rupees, before the suit for its redemption is barred under the law, may apply to the Collector of the area for an order directing the redemption of the land and delivery of the possession thereof. On such application being made the Collector of the area may hold enquiry in accordance with the provision of section 5 of the Act and if he is satisfied that the mortgagor's right to redeem the property has not extinguished and he has deposited or is willing to deposit the sum which may be determined by him as due under the mortgage, he shall make the order for redemption of the mortgaged property. Where an order for redemption of land under section 5 of the Act is passed by the Collector and the amount determined by him is deposited by the mortgagor, the Collector shall make an order under section 6 of the Act for payment of the amount deposited by the mortgagor to the mortgagee and thereupon the mortgage shall extinguish and the possession of mortgaged property shall be restored to the mortgagor and his title to the mortgaged property shall be deemed to have been restored from the date of such deposit. Any person aggrieved by the order of Collector passed under sections 5 and 6 of the Act may institute a civil suit to establish his right in respect of the mortgage and subject to the result of such suit the order of the Collector made under sections 5 and 6 shall be deemed to be conclusive. The Act is a special statute and from a review of the above provisions of the Act is quite clear that where an application for redemption of the land is made to the Collector under the Act, the civil court's jurisdiction to entertain a claim based on the mortgage v. 11 not arise unless a decision is given by the Collector on such application under sections 5 and 6 of the Act. In these circumstances, in our view, the appropriate course for the Civil Court was to stay the proceedings of the civil suit fled by the respondents so as to allow the authorities acting under the Act, to take a decision on the petition filed by the appellants in accordance with the provisions of the Act. The civil suit filed/instituted by the respondents could be taken up by the Civil Court for adjudication only after the decision of the petition of the appellant by the Collector, in accordance with the provisions of section 7 of the Act.
The learned counsel for the appellants has relied on the case Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCM R 92 in support of his contention that where a period of 60 years has already passed and the mortgaged property has not been redeemed, the suit of the nature, as was instituted by the respondents, could be filed before the Civil Court in which a declaratory decree could be granted by the Civil Court. From the report of the cited case it appears that it was an admitted position in the case that the mortgagor had failed to redeem the property within the period of limitation prescribed under the law for redemption of the mortgaged property. It is also apparent from the report of the cited case that the provisions of the Act did not come up for consideration before this Court. We are, therefore, of the view that the observations made in the aforesaid case must be read as confined to the facts of that case. In the case before us on the facts admitted by the parties, it is clear that oh the day the suit was instituted by the respondents before the Civil Court for: a declaration on the basis of the mortgage, a petition under section 3 of the Act was already filed by the appellants which was pending adjudication before the Collector who had the jurisdiction to decide the same in accordance with the provisions of the said Act. It is also evident from the pleadings of the parties in the present case, that the appellants very vehemently disputed that they had failed to get the mortgaged property redeemed within the prescribed period of 60 years. In these circumstances, in our view, the proceedings of the civil suit instituted by the respondents should have been stayed till such time the decision was given on the petition filed by the appellants before the Collector under the provisions of the Act. We, accordingly, allow the appeal, set aside the judgment of High Court as well as that of the 1st appellate Court and the trial Court with the direction that the proceedings shall remain stayed until such time, the petition filed by the appellants before the Collector for redemption of mortgaged property is decided. After the decision of the petition by the Collector, it will be open to the respondents to move the trial Court to take up the suit for trial in accordance with the law if so advised. The appeal is, accordingly, disposed of but there will be no order as to costs, in the circumstances of the case.
A.A./M-1957/S