2009 PLP 1490 (CLD)

MUHAMMAD KHALID ALVI, J.

Despite service respondent No.2 has not entered appearance. He is, therefore, proceeded against ex parte.

2. Brief facts of the case are that against an equitable mortgage of the property in dispute originally owned by respondent No.2 he obtained certain loan from respondent No.1 In order to secure the amount respondent No.1 filed a suit for recovery against respondent No.2 which was decreed vide judgment and decree dated 20-2-1995. Its execution was filed. Initially it was dismissed whereupon a second execution was filed and ultimately property in dispute was auctioned on 29-4-2006 which was successfully purchased by respondent No.3. This sale was also confirmed by the learned executing Court and possession of-the property in dispute was delivered to respondent No.3 on 28-6-2002. Thereafter appellant filed an application under section 12 of Companies Act, 1997 read with section 12(2) and section 151, C.P.C. challenging the decree dated 20-2-1995. This application was contested by the respondents and. was ultimately dismissed vide order dated 26-9-2006 and is being assailed through the instant appeal.

3. Learned counsel for the appellant contends that provision of section 12 of Companies Act, 1997 was inadvertently written in the heading of the petition, however, the application is mainly under the provision of section 12(2), C.P.C.

4. In support of his case, it is argued that appellant was never served with any notice during the execution proceedings. He only came to know on the date when he was forcibly evicted from the property in dispute. It is further added that appellant has a complete title as he purchased the property in a regular chain of sales from the original owner i.e. respondent No.2 it is further added that had the appellant any notice of the pendency of the execution proceedings he would have variety of options either to contest the execution or to satisfy the decree, but on account of fraud he was kept out of picture.

5. On the other hand, learned counsel for the respondents contends that decree in. favour of the Bank was passed on 20-2-1995 whereas the first decree in a suit for specific performance filed by the first vendee of respondent No.2 was passed on 21-5-1995 meaning thereby that property had been gone out of the control of respondent No.2 in the shape of decree in favour of respondent No.1 and he was left with no title to further alienate the same.

6. It is also added that elements necessary for the initiation of proceedings under section 12(2), C.P.C. are lacking in the application filed by the appellant.

7. We have considered the arguments. In para 5 of the application, the appellant has merely mentioned while challenging decree dated 20-2-1995 that the same is based on fraud and obtained by way of misrepresentation. Necessary ingredients of the fraud, if any, have not been pleaded nor the elements of misrepresentation have been detailed in the said para or for that matter in any other part of the said application. It is settled principle of law that if fraud is alleged, its necessary ingredients must be pleaded so as to subsequently prove the same. A general and bald allegation of fraud and mis representation cannot form basis to upset a decree otherwise validly passed by a Court of competent jurisdiction.

8. Apart from this, decree in favour of the Bank had already been passed on 20-5-1995 much before the decree in favour of the first vendee of respondent No.2. Appellant had stepped into much later in the year, 2001 by purchasing it from subsequent vendee. In this view of the, matter, no case for interference in. the impugned order is made out. This appeal has no merit and is accordingly dismissed. H.B.T./N-92/L Appeal dismissed.