2007 PLP 163 (CLD)

The respondent No.1/bank brought a suit for the recovery of "finance", against respondents Nos.2 to

6. It is the case of the bank, that for the finance availed by respondent No.2, the respondent 4, has created a mortgage of his immovable property comprising of land measuring 5 Kanals and 15 Marlas, situated at Garol Ghatti, Band Road. Hadbast Mouza Baghbanpura, Lahore, through memorandum of deposit of titled deed and a token registered mortgage deed; the appellant moved an application under Order I, rule 10, C.P.C., to be impleaded as a party to the suit, stating that he in fact is the real owner in possession of the aforesaid land; respondent No.4, by fraud and forgery has fabricated and manufactured the sale-deed of the land alleged to have been executed in his favour by the appellant and therefore, the appellant is a necessary party to the suit as his property is involved in the matter; the application was contested by the respondents and has been dismissed by the learned Banking Court vide order, dated 24-5-2004; the appellant challenged this order through Writ Petition No.10244 of 2004, which was admitted to regular hearing and was yet pending, when the Banking Court has passed a decree in favour of respondent No.1 and against respondents Nos.2 to 6, thus in the changed circumstances, the appellant has brought this appeal against the said judgment and decree as also challenged the order, dated 24-5-2004, through which his application for the impleadment was dismissed and has withdrawn the writ petition.

2. Another relevant fact of the case is that on 29-10-2003, the appellant had also filed a suit for the cancellation of the sale-deed in favour of the respondent No.4, on the basis of which the mortgage has been created by the said respondent in favour of the bank, in which the respondent/bank has also been impleaded as a party. In the suit, the appellant filed an application for the grant of temporary injunction, seeking restraint against the defendants, including the bank from alienating the said property in any manner, whatsoever, and it has been conceded by the learned counsel for the bank before this Court, today, that an injunctive order, dated 28-6-2004, was passed by the civil Court, through which, the respondent-Bank was put under restraint from alienating the property and such order having not been challenged by the bank and has attained the finality.

3. Learned counsel for the respondent No.1, at the very outset has raised a preliminary objection about the maintainability of this appeal. It is submitted by him that the appellant as an aggrieved party, has also availed the appropriate remedy of filing the objections under the provisions of section 47, C.P.C., before the Banking Court/Executing Court and such objections have been entertained by the Court, are yet pending, in which the stay order has also been granted in favour of the appellant, restraining sale of the property in auction in execution of the decree in favour of the respondent-Bank. Therefore, it is submitted that both the remedies cannot be availed by the appellant. In the light of the above objection and conceding thereto, the learned counsel for the appellant, does not press this appeal; however, states that during the pendency of the above mentioned civil suit filed by the appellant and till the matter is not finally decided, auction of the said property be stayed. Admittedly, upon the objections of the appellant, the Banking/ Executing Court, has taken cognizance of the matter and has granted the stay order to appellant. Thus if any order adverse to the interest of the appellant is passed, such order may be challenged by him before the appropriate forum in proper proceedings. But the stay order cannot be granted to the appellant in this appeal, which is being dismissed as withdrawn. Upon the oral request of the appellant's counsel, as no material proceedings have been taken in the matter, the office is directed to prepare a certificate for the refund of the court-fee affixed upon the memo. of appeal. H.B.T./R-65/L Order accordingly.