MUHAMMAD RAMZAN and others vs MEMBER, BOARD OF REVENUE and others
This petition for leave to appeal arises out of the dismissal of a writ petition by the High Court regarding land treated as evacuee property. The petitioners contended that the land belonged to them and was mortgaged to an evacuee who obtained a final foreclosure decree against them in 1945. Despite this decree, the petitioners filed an application for redemption in 1946 under section 4 of the Punjab Restitution of Mortgaged Lands Act, 1938, which was dismissed by the High Court on the ground that the foreclosure decree acted as a complete bar. The core legal question was whether Section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938, covers subsisting mortgages subject to a foreclosure decree so as to override such decree. The Supreme Court held that while the explanation to Section 2 excludes decrees for redemption, it does not exclude foreclosure decrees, leaving the 1945 final decree intact as a bar. Consequently, the Court refused to grant leave to appeal and dismissed the petition, laying down that foreclosure decrees are not excluded by Section 2 of the Act.
- Does Section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938 exclude a foreclosure decree obtained by a mortgagee?
- Whether an application for redemption of mortgage is maintainable when a final foreclosure decree has already been passed against the mortgagor?
- Does the explanation to Section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938 apply to foreclosure decrees as it does to redemption decrees?
- Section 4, Punjab Restitution of Mortgaged Lands Act 1938
- Section 2, Punjab Restitution of Mortgaged Lands Act 1938
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the petitioners against the dismissal of their writ petition by the High Court. It had arisen out of a property which purported to he evacuee land.
2. ' The land in dispute, according to the petitioners, belonged to them. It was mortgaged with one Tola Ram, evacuee who obtained a decree for foreclosure against the petitioners. That decree, according to the learned counsel, became final in 1945. The petitioners' side, it is evident from the record, was a party to that suit. On account of the said decree, the property in dispute has been treated as evacuee and dealt with accordingly.
3. ' Notwithstanding the said decree, the petitioners' side filed application for redemption of mortgage somewhere in 1946 under section 4 of the Punjab Restitution of Mortgaged Lands Act, 1938. This application finally now stands dismissed by the impugned judgment of the High Court mainly on the ground that the decree obtained by Tola Ram and which became final in 1945 against the petitioners, was a complete bar. Leave to appeal accordingly has now been sought.
4. ' Learned counsel has relied on section 2 of the said Act which reads as follows:-- "2. Notwithstanding anything contained in any enactment for the time being in force, this Act shall apply to any subsisting mortgages of land, which were effected prior to 8th June, 1901.
5. ' Explanation.--A mortgage shall he deemed to subsisting notwithstanding a decree or order for its redemption having been passed provided redemption has not taken place before the commencement of this Act."
6. According to him, notwithstanding any other law or any decree to the contrary, the mortgages subsisting in 1938 were to be dealt with only under the said Act through an application for redemption thereof.
7. ' We do not agree with the learned counsel. Section 2 does not exclude decrees obtained by the mortgagees through foreclosure. The explanation to section 2 does exclude the decrees for redemption but it does not exclude a decree for foreclosure. When confronted with this position, the learned counsel remained unable to render any satisfactory explanation or answer. That being so, we in the circumstances, refuse to grant leave to appeal. The petition, therefore, is dismissed.