2002 PLP 749 (CLD)

It is case of the applicant that the possession was also handed over on 19‑12‑1997. The applicant's Suit No. 1164 of 1998 against the defendant for declaration, specific performance and injunction is pending disposal before this Court, wherein the plaintiff was also joined as a defendant. The plaintiff‑Bank filed Suit No. 540 of 1997 on 21‑4‑1997 against the defendants for recovery of amount due of finance facility provided by them to the defendants. To secure the‑ repayment, defendant No. 1 mortgaged property bearing Plot No. 21, Oil Installation Area, Keamari, Karachi, measuring 9699 sq. metres together with construction. Tank Terminal standing thereon by deposit of title deed, dated 3‑9‑1990. C.M.A. 1285 of 1998 was filed under Order 23, rule 3, C.P.C. by the parties for compromise, which was granted and decree, dated 2nd April, 1998 was drawn accordingly. The decree was put in execution through Execution No.68 of 1998 O.A was appointed to auction the abovesaid property, who took the possession of Terminal. Case of the applicant is that he was in possession of the property pursuant to the sale agreement as such his right was protected in terms of section 53‑A of the Transfer of Property Act. His suit is still pending for disposal. The defendant had knowledge that they parted with the possession under agreement of sale and have suppressed this fact and obtained consent decree detrimental to the interest of the applicant by misrepresentation and fraud and decree is liable to be set aside. I have heard Mr. Abid S. Zuberi, Advocate for the applicant, Mr. Rizwan Ahmed Siddiqi; Advocate for the plaintiff and Mr. Noorullah A. Manji, Advocate for the defendants, West Pakistan Tank Terminal. Mr. Noorullah A. Manji's contention was that the Chairman of the defendant was forced to sign the agreement, who, at present, is out of the country and the applicant have obtained possession but maintained that the conditions of the agreement were not fulfilled by the applicant. Contention of Mr. Zuberi precisely was that the applicant was put in possession in part performance of the agreement. He has been dispossessed by Official Assignee, consent decree obtained by the parties in proceedings is detrimental to the interest of the applicant, who had no knowledge of the' suit, when he was dispossessed the application has been moved. He contended that the consent decree is violative of the principles of natural justice as the applicant's valuable right has been clocked without notice to him and in support of his contention, he referred Mst. Sadat Parveen v. Hafiz Muhammad Rafiq (1998 MLD 2602), the following observations:‑ "In view of the circumstances of the case rule of lis pendens would not overrule the principle of natural justice that party against whom adverse order has been passed has right to be heard." Mr. Zuberi contended that no doubt the agreement could not give right/title in the property but such agreement coupled with the possession protects the right of possession of the transferee and can defend his possessory right and referred Akbar Ali v. Lal and another (PLD 1997 Lah. 709) para. 11 of the same is reproduced as under:‑‑ "

11. Agreement in favour of appellant Exh. D/3 dated 7‑6‑1971 is of. no help to them. Execution of this agreement has been denied by LAI respondent No.1 the original owner of the property. The possession of the land was also not delivered vide Exh.D/3 by Lal to the appellants. Assessment of the evidence by the learned District Judge in coming to the conclusion that respondents Nos.2 to 10 were entitled to the decree for specified performance of contract is fully justified by the evidence on record. The objections of the appellants that the said judgment is in violation of section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is without any basis." Conversely, Mr. Rizwan Ahmed Siddiqi, learned counsel for the plaintiff contended with vehemence that the applicant has filed application only to forestall the sale of property which is being sold due to non‑satisfaction of the decree in favour of the plaintiff. He contended that the applicant had the knowledge of Bank liability of Rs.6 crores against the Terminal. The property was mortgaged, once‑the property is mortgaged charge remains with the property even if it changes hands and contended that the mortgagee has every right for foreclosure of the mortgage unless the amount is repaid. He further contended that the applicant had the knowledge of the liability but liability was not cleared by the defendant or the applicant. In fact the applicant has been brought in picture by the defendant only to frustrate the decree. He contended that legal position is very clear that the mortgage, i.e. charge over the immovable property goes with the same in case of alienation, therefore, the Bank has every right to get the mortgaged property sold for satisfaction of the decree in their favour unless the defendant or the applicant pays the entire decretal amount in redemption of the mortgage and to support his contention referred Tehmina Bashir v. Muhammad Rauf (1995 CLC 973) wherein the following view was taken to support his contention: "It is an established and admitted legal proposition that a mortgage of immovable property goes with the same in spite of alienation therefore, it cannot be said that the bank will suffer any financial loss inasmuch as the property under the mortgage shall be liable to be proceeded against for the satisfaction of the decree which has been passed in favour of the bank." Mr. Rizwan Ahmed Siddiqui further contended that the applicant in similar circumstances was allowed to redeem the mortgage by my learned brother S.A. Sarwana, J. In Habib Bank Ltd v. Messrs Ajma Corporation and others 2000 CLC 1425. I have considered the respective contention. There is no i denial that the property was under mortgage with the Bank by deposit of title deed. The suit was also filed much before agreement between the applicant and the defendant, wherein liability of the Bank was acknowledged by the applicants themselves. The person seeking protection in terms of section 53‑A of Transfer of Property Act, has to show., that he has performed his part of contract and is ready and willing to perform the remaining part of the contract. In the present case, two liabilities were quantified in clauses (2) and (3). Admittedly, the applicant has not liquidated the liability of the plaintiff‑ A bank. In such circumstances, the protection under section 53‑A of Transfer of Property Act is not available to the applicant, on that score the plaintiff cannot claim that the decree was obtained by misrepresentation or that collusion the property was mortgaged with the Bank. It is settled law that the mortgage will go with the property in spite of its alientation to the third party. The applicants in such circumstances are allowed to make payment of the decretal amount within 15 days of the order. In case the applicants fail to satisfy the decree by payment in Court, Official Assignee to proceed with the sale of the property. The application is disposed of in above terms. Q.M.H./M.A.K./S‑176/KOrder accordingly.