IN THE HIGH COURT OF SINDH AT KARACHI

First Appeal No. 44 of 2008

 

1.         For Katcha Peshi.

2.         For hearing of CMA No.1255/08

Objection to the appeal filed

Counter affidavit filed

Fresh notice issued to un-served Respondents

Nos.2 to 4 through  Bailiff, 3rd copy filed

 

 

                          Present:

        Mr. Justice Khilji Arif Hussain

Mr. Justice Arshad Siraj  Memon

Dated of hearing: 08.04.2009

 

            Mr. Nasrullah Malik advocate for appellant.

            Mrs. Saima Alam Khan Durrani advocate for respondent No.1

            Mr. Khaleeq Ahmed advocate for respondent No.5

                      

 

 

 

KHILJI ARIF HUSSAIN, J:-  Brief facts to decide the appeal are that appellant purchased House bearing No.627/2 (148/6-A), Street No.14-J, Bihar Colony, Karachi,(hereinafter referred property in question) from Muhammad Siddique son of Murad Ali in the year 1995 against the sale consideration of Rs.4,75,000/- (Rupees four lacs seventy five thousand only). The appellant filed Civil Suit No.180/2002  in the Court of IVth Senior Civil Judge Karachi South against respondent No.4 for specific performance of contract and permanent injunction. After filing of the written statement the respondent No.4 disappeared from the proceedings and ex parte judgment and decree was passed in favour of the appellant on 27/05/2005.

 

The Respondent No.1 Leasing Company filed Suit No.5/2005 against respondent Nos.2,3 and 4 for recovery of Rs.935,203/-. Banking Court No.1 decreed the suit in the sum of Rs.3,54,069/-  and allowed respondent No.1 to sell the mortgage property, which was mortgaged by Respondent No.4.

 

After the judgment and decree passed by Banking Court No.1, the respondent No.1 Company filed Execution No.77/05.

 

The appellant on 18.07.2006 received notice issued by the Banking Court No.1 direction the person in possession of the mortgage property to vacate the same filed objection under Order 21 Rule 58 read with Section 151 CPC.

 

Learned Banking Court No.1 after hearing the parties through his order dated 29.07.2008 dismissed the application filed by the appellant holding that mortgage property was auctioned as per order of the Court by the Nazir, highest bid was confirmed by the Court and even sale certificate was issued to the auction purchaser.

 

            Heard Mr. Nasrullah Malik advocate for appellant, Mrs. Saima Alam Khan Durrani advocate for respondent No.1, and Mr. Khaleeq Ahmed advocate for respondent No.5.

 

            Mr. Nasrullah Malik learned advocate for appellant vehemently argued that the property in question was purchased in the year 1995 possession whereof was handed over to the appellant. It was argued by the learned counsel for the appellant that at the time of purchase of the property  in question same was under mortgage with National Bank of Pakistan. The appellant paid a sum of Rs.180,000 and a sum of Rs.136,000  to respondent No.4 and when respondent No.4 avoided  to execute Registered Sale Deed in favour of the appellant, the appellant filed Suit No.180/02 in the Court of IVth  Senior Civil Judge Karachi South for specific performance of the agreement. The appellant suit was decreed on 27/05/2005. After suit was decreed the appellant received notice from the Banking Court on 18.07.2006 filed objection under Rule 58 of Order 21 CPC immediately. Learned advocate argued that appellant had valuable right and interest in the property in question and property in question was not available for sale in execution proceedings filed by respondent No.1. It was argued by the learned advocate that the respondent No.1in collusion with respondent No.2 created liability and allow to misappropriate of lease assets in support of his contention learned advocate relied upon the cases of Mst. Rabia Bai vs.  National Bank of Pakistan & Another, NLR 1981 CLJ 371, BENQUE INDOSUEZ vs. MUHAMMAD SALEEM  and others,1987 CLC 795, MUHAMMAD SHAFIQUE vs. Messrs EMIRATES BANK INTERNATIONAL LIMITED  and 2 others , 2003 CLD 1524. MUSHTAQ AHMAD  and others vs. MUHAMMAD SAEED  and others, 2004 SCMR 530, and  MIAN MOHAMMAD RAFIQ SAIGAL vs. TRUST MODARBA  through Trust Management Services (Pvt) Ltd, 2003 CLD 646.

           

Mrs. Saima Alam Khan Durrani learned advocate for respondent No.1, argued that lease finance was granted to respondent No.2 in the year 2003, and as security respondent No.4 mortgage property in question and executed as registered mortgage deed as well as memorandum of deposit of title deed. The lease financing facility of Rs.1,000,000/- was to be adjusted in 36 installment in the sum of Rs.28,529/- per month. On the dishonoured of some post dated cheques Respondent No.1 then filed suit for recovery of its dues as well as for mortgage decree. It was argued by the learned advocate that the after passing of the judgment and decree by the Banking Court, respondent No.1 filed execution proceedings. The executing Court ordered for sale of mortgage property. The sale was confirmed on 30.05.2006 and after confirmation of the sale learned Banking Court issued sale certificate on 20th April 2007.

 

The appellant filed an application under Rule 58 of Order 21 CPC much after the sale of the property in question , which application on the face of it was not maintainable. learned advocate in support of his arguments relied upon the cases of  HUDAYBIA TEXTITLE MILLS LTD.  and others vs. ALLIED BANK OF PAKISWTAN LTD.  and  others__ , PLD 1987 SC 512,  INDUSTRIAL DEVELOPMENT BANK OF PAKSITAN  vs.  MUHAMMAD AYUB  and 4 others, 2009 CLD 346.

 

We have taken into consideration respective arguments advanced by the learned advocates for the parties, perused the record. From perusal of the record, it appears that appellant entered into an agreement of sale dated  09.04.1995 with respondent No.4. The respondent No.4 agreed to sell the property in question in total sale consideration of Rs,4,75,000/- out of which a sum of Rs.2,25,000/- was paid in cash at the time of execution of agreement of sale and balance amount of Rs.2,50,000/- to be paid at the time of registration of conveyance deed on before 30.04.1995. The appellant filed suit for specific performance on 06.03.2002, the respondent No.4 though filed written statement did not contest the suit and as such ex prate judgment and decree was passed for specific performance holding that the appellant is entitled for execution of sale deed in his favour after payment of balance amount of Rs.2,00,000/-. Admittedly, the appellant has not deposited the balance sale consideration of Rs.2,00,000/- (Rupees two lacs) after passing of the judgment and decree dated 27.05.2007.

 The respondent No.1 leasing company filed suit for mortgage decree for recovery of its dues and on 01.06.2005 respondent suit was decreed in the sum of Rs.3,58,069 and mortgage decree was also passed. Before the mortgage charge was created respondent No.4 got notice published in newspaper informing the general public about the mortgage to be created in respect of property in question and  if anyone has any objection he can file the same within seven days but neither the appellant nor any person filed any objection. The permission to mortgage the property was also granted by the competent authority on 16.10.2003. After the mortgage decree passed by the Banking Court the property was put in auction and Nazir of the Court received highest bid in sum of Rs.19,20,000/-. After acceptance of the bid entire amount was deposited by the auction purchaser and Banking Court issued sale certificate on 05.05.2007. In an un-reported judgment of  M/s Salman Catering Services vs. The Banking Court No.IV and 2 others in 1st Appeal No.25/2000, a Division Bench of this Court held that auction sale should only be set aside when equitable  grounds for nullifying  it exist in favour of the person who owns or hold any interest in the property sold and equitable grounds are provided by law under the provisions of Rules 89 & 90 of Order 21 CPC.

The appellant though have notice of sale instead of filing application under Rule 89 & 90 of Order 21 CPC filed application under Order 21 Rule 58 CPC. We would not like to go into the question, whether after decree for specific performance passed by the Civil Court the appellant acquire any interest in the property in question or not but we are of the view that failure of the appellant after passing of the decree, to deposit balance sale consideration of Rs.2,00,000/- till date, disentitle  the appellant from equitable relief if any available to him.

            For the foregoing reasons, listed appeal has no merit and accordingly dismissed in limine.                     

                                                                       

 

 

 

 

 

 

1st Appeal No. 44 of 2008