2015 PLP 765 (CLC)

IKRAM ULLAH KHAN, J.

Through the instant Civil Revision, the petitioner has questioned the impugned judgment dated 21-9-2011 of the learned Additional District Judge-XI, Peshawar, whereby the appeal, filed by the petitioner against the judgment dated 31-1-2011 of the learned Civil Judge, Peshawar was dismissed.

2. Precisely stated facts, giving rise to the instant Civil Revision are the petitioner through Suit No.87/1 of the year 2010, thereby made disputed the sale of the house scheduled therein the plaint, inter se the respondents, whereof placed its case that the suit house was already mortgaged with the petitioner and as such the sale, purchase inter se the respondents was ineffective upon its rights of mortgage.

3. The respondents, in unequivocal terms, conceded the factum of mortgage, of the suit house in the hand of petitioner on consideration of Rs.300,000.

4. The learned Trial Court, thereafter an elaborate inquiry, on conclusion of trial dismissed the suit in so far the original prayer of the petitioner, was concerned, however, a decree in respect of the alternative prayer was awarded to the petitioner.

5. On appeal, the learned lower appellate Court, upheld the impugned judgment of the learned Civil Judge, Peshawar and consequently dismissed the appeal.

6. Being aggrieved by the impugned judgments of the learned lower appellate Court, the petitioner has preferred the instant petition of revision before this Court.

7. The learned counsel, who made appearance on behalf of the petitioner contended that as the suit house was already mortgaged with the petitioner, the respondents could not sell the suit house, but both the learned lower Courts, misconstrued the law in this regard, resulted in miscarriage of justice.

8. The learned counsel for the respondent, contended that no legal bar existed therein making sale of the suit house, however, the mortgage money, received by the respondents, as per the directions of the Court will be paid back to the petitioner, and the petitioner has no locus standi to challenge the sale of the house effected inter se the respondents, supported the impugned judgment.

9. The only and the sole question, which has been already answered in an elaborate manner, by both the learned lower Courts before this Court is whether, the respondents inter se were not competent to effect sale-purchase of the suit house, despite of the fact that the suit house was already mortgaged with the petitioner? Transaction of mortgage or sale both are regulated thereunder the provisions of the Transfer of Property Act, 1882.

10. The suit house, was at first instance, was given in possession to petitioner, on term of tenancy, whereas, the petitioner paid a sum of Rs.23,000 to the respondents as advance, subject to condition, well stipulated therein the agreement deed dated 5-8-2000 and the petitioner was made bound to pay Rs.150 per month as rent for the next three years. On expiration of the said rent agreement, the respondent, executed another rent agreement cum mortgage deed on 20-3-2002, whereby respondents admitted acknowledgement of Rs.3,00,000 and the rent for usufructure of the house was fixed as Rs.50 per month till 31st March, 2005.

11. During the subsisting of the rent agreement, respondents Nos.1/1 to 1/12 sold the suit house to respondent No.2 for a sale consideration of Rs.3,00,000 however, concealed the fact of the agreement deed dated 20-3-2002.

12. The respondent No.2 the vendor, filed an ejectment petition against the petitioner, in regard to the suit house, which was dismissed by the learned Rent Controller on the ground, that the suit house was already being mortgaged with the petitioner, could not be ejected therefrom without first redeeming the mortgage.

13. On dismissal of the rent application, filed by respondent No.2, the petitioner instituted the instant suit against the respondents in the year, 2010.

14. The remedies available to the petitioner was that of a suit for foreclosure, while the respondents had to bring a suit for redemption but both the parties, did not adopt the proper course either to foreclose or redeem the suit house. The mortgagee/petitioner was also entitled to receive the mortgage money thereunder the provisions contained in section 68 of the Transfer of Property Act.

15. No bars exist, thereon the sale purchase of a mortgaged property except that mortgage is always considered a charge over the property sold, which is previously mortgaged.

16. Though no explicit provisions, being applied thereto any provisions of the Transfer of Property Act, which bars, the sale of the mortgaged property, however, the buyer stepped into the shoes of the mortgagor/vendor, and could not acquired better title than it was at the time of the sale.

17. The right of such a buyer and the mortgagee however, is saved thereunder provisions contained in section 56 of the Transfer of Property Act, 1882, which impliedly also envisaged that a mortgaged property could be sold, which is read as:

"Marshalling by subsequent purchaser.

If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person the buyer is in the absence of a contract to the contrary, entitled to have the mortgage-debt satisfied out of the property or properties not sold to him, so far the same will extent, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties."

18. No prejudice has been caused to the petitioner, as being compensated and a decree for the mortgage money has already been awarded to him. However, the respondents Nos.l and 2, had played a fraudulent act, whereby kept concealed the fact of mortgage of the suit house. Equity demands that the petitioner be relieved of the cost imposed upon him by the learned Trial Court, which was kept intact by the learned lower appellate Court too. The petitioner, being the mortgagee of the suit house, may retain its possession till the suit house is redeemed in accordance with law, while a decree for the payment of the mortgage money has already been passed in favour of the petitioner, which has not, assailed either by a separate appeal or cross-objections, has attained finality, as such the petitioner is entitled to receive back the mortgage money of Rs.3,00,000.

19. The concurrent findings on facts rendered by both the learned lower Courts, are based on correct appreciation of law and facts, not warranted to be interfered except, the amount of costs imposed on the petitioner.

20. Keeping in view the reasons given hereinabove, this revision petition is accordingly dismissed. AG/112/P Revision dismissed.