The above entitled petition for leave to appeal and the application for stay order arise out of the impugned judgment of the High Court, whereby the appeal filed by the petitioner, herein, was dismissed.
2. The brief facts of the case are that a decree for possession on the basis of redemption of mortgage was passed in favour of the respondent No. l who subsequently moved an application for execution of the decree before the Sub-Judge. The trial Court, vide its order dated 9-11)-1998, issued warrant of possession in his favour. The petitioner, herein, feeling aggrieved, filed appeals to the District Judge and the High Court which were also dismissed.
3. It tray be observed that the contention of the petitioner, herein, before the High Court was that the decree for the redemption was without jurisdiction in view of the Ordinance known as the Azad Jammu and Kashmir Redemption and Restitution of Mortgages Ordinance, 1969 (hereinafter shall be called as the Redemption Ordinance) which was promulgated by the President under section 17 of the Azad Jammu and Kashmir Government Act, 1968 (hereinafter shall be called the Government Act of 1968). He contended that when the Government Act of 1968 was repealed by the Act of 1970, the Redemption Ordinance of 1969 was given protection under section 29 of the Constitutional Act of 1970. It was also the case of the petitioner, herein, that after the promulgation of the Redemption Ordinance, the civil Court had no jurisdiction to entertain .The suit for redemption. The High Court observed that the Redemption Ordinance of 1969 was given protection under section 29 of the Constitutional Act of 1970 and sections 3 and 17 of the Government Act of 1968 do not bar the jurisdiction of the civil Court but merely postulate that the jurisdiction would be barred only if an order of extinguishments of mortgage has been passed under the Ordinance. The learned Judge in the High Court further observed that the jurisdiction of the civil Court is not ousted merely because alternate remedy under the Redemption Ordinance of -1969 was available. The jurisdiction of the civil Court is ousted by specific statutory, provisions or by necessary implication.
The learned Judge has relied upon a case reported as Zohr A.I v. Muhammad Yusuf (1986 CLC 1301) in support of the aforesaid view.
4. Raja Muhammad Siddique Khan, Advocate, the learned counsel for the petitioner, has argued that the High Court was not correct in holding that the jurisdiction of the civil Court was not barred.
He has contended that in view of the remedy available under the Redemption Ordinance, 1969, the civil Court was not competent to pass a decree for redemption by necessary implication. He has further contended that even the authority relied upon by the High Court clearly says that the bar of jurisdiction is applicable even by implication. Thus, he has argued that the civil Court had no jurisdiction in the instant case. The learned counsel has further argued that as no final decree was passed in the instant case, the execution proceedings were incompetent.
5. In reply, Raja Habibullah, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the petitioner, and has argued that the objection regarding jurisdiction was not raised in the original suit; the same was raised for the first time in the appeal in the High Court in the execution proceedings. The learned counsel has submitted that there is no authority in support of the view that civil Court was not competent to entertain the suit for redemption of mortgage after the promulgation of the Redemption Ordinance of 1969. The learned counsel has further argued that a mortgage can be redeemed by the civil Court under the aforesaid Ordinance. He has referred to a case reported as Shukar Din v. Nazir Ahmad (1993 CLC 1367), wherein it was observed that a suit for redemption of mortgaged property under section 3 of the Pakistan Redemption and Restitution of Mortgages Act, 1964 can be tried by a civil Court; it was held that if the Collector can pass an order, the civil Court is equally competent to hear such a suit.
He has further argued-that it is not necessary that the execution proceedings in a mortgage case could be started only after a final decree of the civil Court. He has referred to a case reported as Muhammad Bashir v. Allah Rakha (1990 CLC 1715), wherein it has been held that it is not necessary in every mortgage suit that a final decree should be passed; it was held that it depends upon the circumstances of each case whether a preliminary decree is required to be made or not.
6. I have given due consideration to the arguments advanced at the Bar. It may be stated here that the question as to whether the civil Court had the jurisdiction in 'view of the aforesaid Ordinance, was raised for 'the first time in the High Court in the present proceedings and was repelled; no such objection was raised in the original suit which finally resulted in the decree in favour of the respondent. Even otherwise, the jurisdiction of civil Court is not ousted by implication because the Redemption of Mortgages Act was promulgated. Similarly, it is not necessary to pass a final decree in a mortgage case, especially so when it is not shown that the mortgage amount was not ascertainable.