' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 24-6-1998, whereby the writ petition filed by the respondents, herein, was accepted and the order passed by the Financial Commissioner was vacated.
2. The brief facts of the case are that the appellants made an applications for restitution of mortgage of land measuring 12 Kanals, 16 Marlas, comprising Survey Nos.837 and 834, situate in Leswa . The Collector of the district, after hearing the parties, ordered the restitution of mortgage.
The appeal before the Commissioner also failed. However, the Financial Commissioner, vide his order, dated 15-1-1994, reversed the orders of the Collector as well as of the Commissioner holding that mortgage being for a period of 90 years, could not be restituted before the expiry of the said period. Aggrieved by this order of the Financial Commissioner, a writ petition was filed by the respondents in the High Court which was accepted and the order passed by the Financial Commissioner was vacated and that of the Collector and Commissioner were restored. It is against the aforesaid judgment of the High Court that the present appeal has been directed.
3. A preliminary objection was raised by the learned counsel for the respondents that the appeal is barred by 24 days. However, there is an application for the condonation of delay wherein it has been stated that' the appellants could not get the knowledge of the impugned judgment of the High Court as they had to change their place of ordinary residence due to Indian firing from across the line of control and, thus, they could not communicate with their counsel at Muzaffarabad. The application is supported by an affidavit. There is no affidavit in rebuttal. Therefore, . We are inclined to condone the delay in filing the petition for leave to appeal or for that matter the appeal. Hence the delay in filing the same is hereby condoned.
4. Coming to the merits of the case, it has been argued by Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for the appellants, that as the mortgage of the suit land in the present case was for a period of 90 years, the same could not be restored to the respondents before the expiry of the said period under section 10 of the Ordinance known as the Azad Jammu and Kashmir Redemption and Restitution of Mortgaged Lands Ordinance, 1969. The learned counsel has referred to a case reported as Habibullah v. Mahmood 1984 CLC (SC AJ&K) 309 in support of his contention, wherein, while dealing with the question as to whether the mortgage deed executed for a period of 90 years would be deemed to be a clog on the equity of redemption in view of section 148 of the Limitation Act which envisages that a mortgage is redeemable within a period of 60 years after the expiry of the period of mortgage. It was opined that the mere fact that the mortgage was for a period of more than 60 years, it could not be regarded as a clog on the equity of redemption under Article 148 of the Limitation Act.
5. Sh. Abdul Aziz, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellants. He has argued that the plaint reading of section shows that usufructuary mortgage for more than 20 years or a mortgage where the period for which property was mortgaged had expired, can be redeemed under the provisions of the said Ordinance. He has contended that in the instant case it is not controverted that the property in dispute was mortgaged for a period of 90 days, but it was 21 years old at the time when the application for the restoration of the possession of the land in dispute was presented. Thus, according to the learned counsel, the mortgage being 20 years old at the time of application for restoration of the same, the Collector was competent to order its restoration under the Ordinance.
The learned counsel has argued that the authority relied upon by the learned counsel for the appellants has no relevancy to the case in hand, because in that case the proceedings were not initiated under the provisions of the Ordinance besides, the question of clog on the equity of redemption is not involved in the present case.
6. We have given due consideration to the argument raised at the Bar and we are of the opinion that under section 10 of the Ordinance, a usufructuary mortgage which is 20 years old or the period for which the property was mortgaged had expired, the Collector had the power to order the restoration. For the sake of convenience, section 10 of the Ordinance is reproduced as under:--- "The Mortgagor of any subsisting usufructurary 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."
7. As in the instant case, the mortgage was 21 years old, i,e, more than 20 years, the Collector had the jurisdiction to order the restoration of the same and the argument that it could not be restored or redeemed before the expiry of 90 years is not tenable and is hereby repelled.
' In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with no order as to the costs.