2013 PLP 598 (CLD)

The respondent bank instituted a suit for recovery of Rs.47,12,096.33 against present respondent No.3. The suit was decreed by Judge Banking Court vide decree dated 12-4-2010. The decree was converted into an execution petition. The present petitioner made an objection petition contending that she had purchased the property sought to be put to auction through an agreement to sell. Written reply was filed. The petition was dismissed on account of non-prosecution vide order dated 19-10-2010. A second petition on the same subject was made, it was dismissed by the learned Judge Banking Court No.III, Multan vide order dated 18-5-2011.

2. It is contended by the learned counsel for the appellant that the dismissal of the application does not preclude the appellant to make another application; that the earlier application was made under section 47, C.P.C. Even, the dismissal of the said application will not preclude the petitioner from making another application challenging the auction proceeding after having earned a right in the property and a suit for specific performance of contract having been filed against the judgment debtor which is now pending adjudication; that the date when the earlier application was dismissed, the case was not fixed for hearing of the case.

3. This appeal is opposed by the learned counsel for the respondent-bank the decree holder, the auction purchaser and the learned counsel for respondents Nos.3 to

5. It is contended that this application is not maintainable under Order IX, Rule 9, C.P.C. which precludes a plaintiff and also an applicant or appellant from instituting a suit or making an application after dismissal of the earlier one. He could however, seek for restoration after furnishing the reasonable grounds for his absence; that even the alleged agreement to sell by the judgment debtor in favour of the appellant will not equip him with any right to dislodge the decree holder.

4. We have heard the learned counsel for the parties and also gone through the record.

5. The stance taken by the learned counsel for the appellant that the order dated 19-10-2010 is illegal as the case was not fixed on that day for hearing and it was only fixed for submission of the written reply which had been submitted, is not acceptable. It could be a ground for restoration of that application, but not for making for another application. Even otherwise, an agreement to sell does not defeat the right of the decree holder and does not equip a person with any legal right. The decree holder has not been impleaed as one of the defendants in the suit for specific performance of the contract instituted by the appellant. In view of the principle laid down under Order IX, Rule 9, C.P.C., we are of the view that the second application is not maintainable and the appellant is precluded from making such application. The impugned order is not illegal. This appeal has no merit. It is, hereby, dismissed. KMZ/M-324/L Appeal dismissed.