2022 PLP 137 (CLD)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the order dated 08.06.2021, passed by the learned Additional District Judge, Lahore, whereby the application of the petitioners, filed in an execution petition, seeking permission to pay the decretal amount in installments, was dismissed.

2. Brief facts of the case are that the respondent No.1/Industrial Development Bank of Pakistan (hereinafter referred to as the "respondent-bank"), filed an application under Section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 (XXXI of 1961) for the sale of mortgaged/suit property for the satisfaction of the outstanding amount. The said application was contested by the respondents Nos.2 to

5. The learned District Judge, Lahore, after recording evidence, vide order dated 21.03.1991 accepted the application and granted permission to the respondent-bank to sell the suit property/ attached property. The respondents did not challenge the aforesaid judgment in appeal. The respondent-bank thereafter filed an execution petition on 04.04.1991 which is still pending. The predecessor-in-interest of the petitioners Nos.1 to 9 namely Saadi Asmat Ullah filed an application before the learned District Judge, Lahore, claiming that he had, in good faith purchased the suit property through registered sale deed dated 04.08.1990 from one Taufeeq Ahmad who had purchased the same through registered sale deed dated 21.12.1987. The predecessor-in-interest of the petitioners Nos.1 to 9 filed objections to attachment of the suit property which were rejected and application was dismissed by the learned District Judge vide order dated 03.06.1992. Against the said order, the predecessor-in-interest of the petitioners Nos.1 to 9 filed an appeal (F.A.O No.137/1992) before this Court which was accepted vide order dated 26.10.1992. The respondent-bank assaliled the said order through a Civil Appeal No.484 of 1993 before the Hon'ble Supreme Court of Pakistan which was accepted by the Hon'ble Supreme Court of Pakistan vide order dated 22.03.1999 [reported as Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others (1999 SCMR 2874)]. The Hon'ble Supreme Court of Pakistan while setting aside the order dated 26.10.1992 passed by this Court upheld the order dated 21.03.1991 passed by the learned District Judge, Lahore. Respondent No.11/Naseer Ahmad, alleged purchaser from Mst. Surraya Begum (respondent No.10), filed an application for depositing 1/4th of the decretal amount of his share of 10 Marla land before learned executing Court. The said application was dismissed on 15.12.2012. Against the said order, respondent No.11 filed Civil Revision No.451/2013 which was dismissed by this Court vide judgment dated 23.02.2017. The said judgment was not assailed any further. The petitioners have now filed an application before the learned executing Court on 07.06.2021 seeking permission to pay the decretal amount in installments which application was dismissed vide impugned order dated on 08.06.2021. Hence, this civil revision.

3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.

4. Admittedly, the application filed by respondent No.1 under Section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 was accepted by the learned District Judge, Lahore vide judgment dated 21.03.1991 to sell the suit property mortgaged with the respondent-bank. During the pendency of the said application, the suit property was also attached. The relevant portion of the judgment dated 21.03.1991 is reproduced as under: "

10. Since the respondents have not been able to discharge the onus of the issues the burden of which was upon them, therefore, I decide all the issues against the respondents and in favour of the petitioner Bank. Resultantly the application is accepted, and in exercise of the powers vesting in this court under section 39(3) of the Ordinance, I, therefore, made the order dated 20.6.1988 absolute and direct the sale of the attached property." Section 39(11) of the Ordinance ibid provides remedy of an appeal against the judgment/order but the said remedy had not been availed, as such, the order dated 19.03.1991, passed by the learned District Judge, Lahore has attained finality. Thereafter an execution petition was filed on 04.04.1991 which is still pending.

5. The predecessor-in-interest of the petitioners Nos.1 to 9 filed an application in execution petition claiming that in good faith he had purchased the suit property through registered sale deed dated 04.08.1990 from one Taufeeq Ahmad who had purchased the same through registered sale deed dated 21.12.1987. The said application was dismissed by the learned District Judge, Lahore, vide order dated 03.06.1992 by holding that the property had already been mortgaged and the documents of the title had been deposited with the respondent No.1, as such, the respondents Nos.2 to 5 had no authority to transfer the suit property to anyone as they were not the ostensible owners of the suit property. The aforesaid order was challenged before this Court through F.A.O No.137/1992 which was allowed on 26.10.1992. The respondent-bank challenged the judgment dated 26.10.1992 before the Hon'ble Supreme Court of Pakistan through Civil Appeal No.484 of 1993 which was allowed on 22.03.1999 [reported as Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others (1999 SCMR 2874)] wherein it was held that the benefit of Section 41 of the Transfer of Property Act, 1882 does not appear to be applicable to the present petitioners. The relevant portion of the judgment supra is reproduced as under: "

9. In the present case, even if it is accepted that the disputed property had been purchased by the respondent No.1 for consideration, the remaining conditions are not satisfied. The property had been mortgaged and the documents of title had been deposited with the appellants. The respondent No.2 having already divested himself of the rights in the property after its mortgage, was neither the ostensible owner of the property in question nor any express or implied consent of the appellants in this regard can be spelt out. As evidently the respondent No.1 had purchased the said property without even verifying the original documents of title, which were with the appellants, he cannot be said to be transferee in good faith. An act is said to be done in good faith when it is done with due care and attention. Therefore, section 41 does not appear to be applicable in the present case.

10. Secondly, the learned Judge in Chambers appears to have failed to notice that the alleged transaction between the respondent No.1 and the respondent No.2 was hit by the doctrine of lis pendens. There already were proceedings pending in respect of the disputed property before the Court under section 39 of the I.D.B.P. Ordinance, as pointed out earlier and the said property was under attachment of the court at the time of its alleged sale to the respondent No.1 or his predecessor-in-interest. Therefore, such transfer when litigation in respect of the said property was pending before the Court, was to be governed by the provisions of section 52 of the Transfer of Property Act, which lays down that such transaction, made during pendency of litigation cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court. Even a bona fide purchaser with consideration pendente lite would be bound by the result of the litigation as his rights in such property would be subject to the rights of the parties to the litigation as finally determined by the Court. thus, no protection was available to respondent No.1 and the judgment of the learned Judge in the High Court has failed to make a correct exposition of law." As the matter has already been finalized up to the Hon'ble Supreme Court of Pakistan and same has attained the status of past and closed transaction, as such it could not be re-opened or re-adjudicated mere on the whims and caprice of a litigating party. Reliance is placed on Pakistan International Airlines Corporation v. Aziz ur Rehman Chaudhary and another (2016 SCMR 14).

6. Admittedly the petitioners Nos.1 to 9 derived alleged right from their predecessor who lost his claim of bona fide purchaser up to the Hon'ble Supreme Court of Pakistan, as such, they stepped into shoes of their predecessor and are debarred to claim any independent better title than that of their predecessor. Reliance in this regard is placed on cases cited as Mst. Zaitun Begum and others v. Agha Qasim Ali and others (1990 SCMR 1613), Abdul Hameed through L.Rs. and others v. Shamsuddin and others (PLD 2008 SC 140), Citi Bank N.A. through Branch Manager v. Munir Ahmad Gill and 2 others (2006 YLR 2938), Muhammad Yousaf and 2 others v. Muhammad Alam Usmani and others (2007 YLR 2735), Muhammad Yousaf v. Irfan and 4 others (2009 YLR 1688) and Riaz Hussain and 2 others v. Mst. Waso and others (2010 YLR 2846). Thus the petitioners Nos.1 to 9 are neither the interested party nor have any cause of action and being strangers to the lis, they also have no right to request the learned executing Court for making deposit of the decretal amount. Presently, the petitioners Nos.1 to 9, after lapse of 29 years, have come up with the application on 07.06.2021, seeking permission to deposit the decretal amount in installments whereas they are strangers to the litigation and in absence of any provision of law, they cannot be allowed to deposit the decretal amount in order to fairly protect the rights of the decree holder, otherwise there would be no end of the litigation. Reliance in this regard is placed on a case cited as Moulvi Muhammad Ishaq and another v. The P.O.F (1989 SCMR 1052) wherein the Hon'ble Supreme Court of Pakistan has held has under: " . If it is found by the Court that a party which has no legal right under the law and is openly a stranger and comes to Court to secure relief in a matter, he cannot be allowed to pay any claim to the same without the requisite course." Reliance is also placed on the cases cited as Pir Khan through this Legal Heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 SC 485), Tehsil Municipal Administration and another v. Chaudhry & Co. through Farhat Mehmood Bhalli and others (2005 SCMR 1361), Messrs Irisma International, Karachi and 3 others v. United Bank Limited, Karachi and another (2007 SCMR 1271) and Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189).

7. Admittedly the earlier application of the predecessor-in-interest of the petitioners Nos.1 to 9 containing same subject matter was remained under contest between the same parties up to the Hon'ble Supreme Court of Pakistan and the said lis was finally decided in favour of the respondent-bank, as such, the same matter cannot be re-agitated. This second application on the same controversy/ subject is not maintainable under section 11 of C.P.C. Reliance is placed on the cases cited as Muhammad Chiragh-ud-Din Bhatti v. The Province of West Pakistan (Now Province of Punjab) through Collector, Bahawalpur and 2 others (1971 SCMR 447), Muhammad Akhtar and others v. Abdul Hadi and others (1981 SCMR 878) and SME Bank Limited through President Islamabad and others v. Izhar ul Haq (2019 SCMR 939).

8. As regards the case of petitioners Nos.10 and 11 is concerned, the petitioner No.11, who has allegedly purchased some portion of the land in question from petitioner No.10, filed an application to deposit of 1/4th of the decretal amount to the extent of his share which was dismissed by the learned executing Court on 15.12.2012. An application under section 12(2), C.P.C. was also dismissed on 26.07.2012. The order dated 15.12.2012 was challenged by the petitioner No.11 through Civil Revision No.551/2013 which was dismissed by this court on 23.02.2017. The petitioner No.11 did not assail the aforesaid orders before the Hon'ble Supreme Court of Pakistan, as such, to their extent, the matter has also attained the status of finality.

9. As discussed above, in the light of the verdict rendered by the Hon'ble Supreme Court of Pakistan, the petitioners Nos.1 to 9 being strangers to the lis have no locus standi to file instant application for making deposit of the decretal amount in installments rather these proceedings are tainted with mala fide to frustrate the execution proceedings pending since 04.04.1991 (i.e. 30 years). As regard the case of the petitioners Nos.10 and 11 is concerned, the case of the petitioner No.11 has been dismissed up to this Court which was not further challenged, as such, they also have no locus standi to file instant application.

10. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned order of the learned executing Court and has also not identified any jurisdictional defect. It is apparent from the record that the petitioners and respondents Nos.2 to 5 with their inter se collusiveness are trying to frustrate the execution of the judgment which cannot be permitted in any way. In view of the circumstances of the case, the learned executing Court rightly dismissed the application of the petitioners.

11. Resultantly, this civil revision being devoid of any force is dismissed with cost of Rs.100,000/-. MH/S-67/L Revision dismissed.