Principles

·  MORTGAGE — Redemption — No action to compel redemption of unexpired possessory mortgage — Civil Justice OrdInance 1929. s. 119.

A mortgagor cannot compel redemption of a possessory mortgage by offering payment of the debt before expiration of the period specified for payment.

Judgment

Osman El Tayeb, P. J. , March 3, 1958:— Applicant is the mortgagee of Plot No. 29, Block 6, Berber town, comprising 299 square meters. The proprietor is respondent. The mortgage is possessory for the period of two years and has not yet expired. Respondent offered the mortgage debt and applied for redemption of the mortgage. The learned District Judge, on the petition only, ordered the payment of the mortgage debt in Court and the release of the mortgage. This he made on a totally erroneous conception of law he stated , “The mortgagee has no right to refuse to accept payment before the expiration of the two years.” He also added, “It has been held and repeatedly held that such an agreement to keep the security (i.e., the mortgaged property), even after payment of the mortgage debt, is repugnant to the nature of the transaction.”

The learned District Judge did not quote any authority for either of the two statements of law that he made, and I am sure that he would find none. Again he did not say that they were his own considered opinions.

Before it is necessary to look into authorities, let us first look into our simple Civil Justice Ordinance. We find section 119. It provides for the sake of redemption, two classes of mortgages in which:

(I)                           the time for payment  of the mortgage debt is specified, and

(II)                        the time is not specified.

I may make a short comment -on The second statement quoted above from the opinion of the learned District Judge. I wish to make this comment only because it appears to me as being taken from Cheshire, Modern Real Property 586 (6th. ed 1949) from the section headed thus : “The right of redemption is inviolable.” This -refers to the cliches of English law known as, “Once a mortgage always a mortgage,” or “Any clog on the equity of redemption is void.” This means that the mortgagor and the mortgagee cannot by themselves agree on something ‘that would prevent the mortgagee from redeeming after the expiration of the period of the mortgage, and after payment. They do not mean that the mortgagor can sue for redemption before the end of the period of the cortract.

Application for revision is allowed, and the order of District Judge, Berber, dated December 5, 1957 is set aside.