AZIZ-UR-REHMAN vs ANWAR HAYAT O — 2026 PLD 140 PESHAWAR-HIGH-COURT

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AZIZ-UR-REHMAN VS ANWAR HAYAT O.XXXIV, Rr.7(1)(c)(i), 7(1)(c)(ii) & 8(3)---Suit for possession through redemption of mortgaged property---Usufructuary mortgage---Non-compliance with order of payment under preliminary decree---Effect---Passing of final decree---Entitlement of mortgagor---Scope---Stance of petitioner (mortgagee/defendant) was that respondent (mortgagor/plaintiff) ought to have applied for extension of time instead of seeking final decree---Validity---Record revealed that the mortgage in question was usufructuary mortgage, and though under Cl. (c)(i) of R.7(1), O.XXXIV, C.P.C., a preliminary decree may fix time for payment of decretal amount, failure to deposit within such time does not debar mortgagor from right of redemption---Under Cl. (c)(ii), R. 7(1), a mortgagee may apply for final decree only in cases other than usufructuary mortgage---Thus, mortgagee is not entitled to apply for final decree in case of usufructuary mortgage---It is the mortgagor who may apply for final decree upon payment of decretal amount and seek possession---In mortgages other than usufructuary, terms of final decree vary as provided in R.8(3), O.XXXIV, C.P.C.---Exception in usufructuary mortgage exists because mortgagee remains in possession and his interest is not prejudiced by delay in payment, whereas mortgagor suffers by inability to redeem until payment is made---Therefore, contention of petitioner had no force, as mortgagor in usufructuary mortgage is not required to seek extension of time under R.7(2), which applies to foreclosure or sale cases only---Extension of time merely postpones final decree in foreclosure or sale, which is not applicable to usufructuary mortgage---Right of redemption subsists until it is extinguished by final decree debarring such right, or by confirmed sale---Even after sale, redemption is permissible before confirmation---In present case, petitioner/mortgagee had not applied for final decree; therefore, right of redemption subsisted---There is no bar to filing second suit for redemption where earlier decree has not been satisfied---Contention regarding limitation was misconceived, as right to apply for final decree continues until right of redemption is extinguished---It was not disputed that respondent/mortgagor had deposited decretal amount, and even otherwise, right of redemption would subsist until extinguished by final decree---Constitutional petition filed by mortgagee, being meritless, was dismissed.

AZIZ-UR-REHMAN vs ANWAR HAYAT O — 2026 PLD 140 PESHAWAR-HIGH-COURT

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