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Appellate Side No. 12 of 1954‑55, decided on 30th November 1956, District Multan,

Ss. 6 to 11‑Dismissal of application under Redemption of Mortgaged Lands Act, (II of 1913) does not bar application under Act IV of 1938.

New plea cannot be allowed to be raised for first time.

Sh. Bashir Ahmad and Kh. Abdur Rahim Advocates for Appellant.

Muhammad Amin Khan, Mahmood Ali Qasuri, Khalifa Mumtaz Hussain and Faiz Rasul, Advocates for Respondents.

Respondents No. 1 in person.

This case relates to a proceeding under the Restitution of Mortgaged Lands Act relating to about 600 kanals of land situated near Multan town. The latest decision in the case is that of the Commissioner dated 30^th June 1955 and he has directed that the mortgage of the land in dispute should be extinguished on payment of Rs. 232‑8 as compensation.

The appellant (the mortgagee) had raised an objection before the Collector and the Commissioner to the effect that the mortgage had originally been effected in 1879 and that the application for restitution, lodged on 19th December 1939, was time‑barred. The Collector had accepted this plea, but the Commissioner has rejected it. This particular plea has not been pressed before me, because the original mutation mentions the date of the mortgage as 10th September 1887. There is nothing to indicate that the mortgagor admitted in any civil litigation that the date of the mortgage was 1879. A certified copy of the original deed (duly registered) was produced before the Commissioner. On reference to this copy, I have found that the date 10^th September 1887 is correct.

The Collector and the Commissioner had dealt with one other aspect of the case. It appears that the mortgagor had made an effort to get this land redeemed under the Redemp tion of Mortgaged Lands Act, 1913. He put in an application for the purpose but he failed to deposit the necessary amount. His application was, therefore, dismissed. The Collector in the present case decide that the dismissal of that application made it incumbent on the mortgagor to seek the redemption of the mortgage in dispute within one year by instituting a suit in a competent Civil Court. The Commissioner, however, considers that the dismissal of the mortgagor's application under the Redemption of Mortgaged Lands Act, as described above, could not be counted as a dismissal under A any of the sections 6‑11 of that Act and that consequently the right of the mortgagor to redeem the land was not circum scribed in any manner. I have no hesitation in accepting the Commissioner's finding on this point.

A third question, which has arisen during the course of arguments before me is that the mortgage deed of 10^th September 1887 talks of 'Bai‑Bilwafa' in addition to the 'Rehn'. The relevant words on the subject are :‑

The appellant wants me to conclude :‑

(1) that the document, though described as a deed of mortgage, was really a deed of 'Bai‑Bilwafa,'

(2) that the right of the mortgagor to redeem his land was‑ limited to a period of one year only (viz. the 46th year), and

(3) that since the right was not exercised during that year, the mortgage has automatically become a sale.

The first reason for dismissing this plea of the appellant is that he did not advance this plea before the Collector or the Commissioner. The second reason for doing the same is that the conclusion mentioned at (2) above cannot be legally drawn from the phraseology of the document of 10^th September 1887. The correct interpretation appears to be that if the mortgagor does not redeem the mortgage in the 46th year, the mortgagee would get the right of seeking the help of a competent authority for converting the transaction into a sale or, in other words, the mortgagee would get the right of foreclosing the mortgage by instituting the necessary proceeding in a competent Court.

For the above reasons, I dismiss this appeal.

K. M. A. ‑‑ Appeal dismissed.

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