2004 PLP 755 (CLD)

‑‑‑‑Ss.9, 15 & 21‑‑‑Civil Procedure Code (V of 1908), O.XXXIV, R.1‑‑‑Decree in suit for recovery of loan amount by sale of mortgaged property‑‑‑Necessary parties‑‑‑Contention of appellants (non‑parties to suit) was that they had purchased lease‑hold rights in two suit properties before institution of suit, but they were not impleaded in suit, although they were necessary parties in view of O.XXXIV, R.1, C.P.C., having an interest in mortgage security and rights of redemption, thus, impugned decree could not be executed against them; and that mortgage qua such properties allegedly created by judgment debtors defendants was in nature of equitable mortgage, but in original lease deed executed by Cantonment Board, there was specific clause that no encumbrance would be created on its property without its permission, thus, such mortgage was invalid having no adverse effect upon appellants rights‑‑‑Bank did not object to joining appellants as parties in suit, subject to maintaining ,impugned judgment and decree against judgment debtors‑‑‑High Court remanded case to Baking Court for its decision after allowing Bank to file within one month amended plaint by impleading appellants as defendants, and thereafter appellants would have a right to file leave application within 20 days, and impugned decree would remain intact against judgment debtors and in abeyance regarding such properties. M. S. Baqir for Appellants. Shams Mehmood Mirza for Respondent No.

1. Regular First Appeals Nos.721 and 782 of 2001 are being disposed of together, as these are against the same judgment and decree dated 25‑9‑1998.

2. Briefly stated the facts of the case are that the respondent‑Bank instituted a mortgage suit against respondents Nos.2 to 9, for the recovery of the amount mentioned in the suit and the decree. Suit was contested by the said respondents by filing leave application, which was rejected and correspondingly decree was passed. Learning about the above decree, the appellants have challenged the same on the ground that out of the suit properties, the lease hold rights of the Plots Nos.90 and 91‑C. had been purchased by them vide registered lease, deed dated 10‑1‑1996 i.e. before the institution of the suit, which was brought on 28‑1‑1996, resultantly, in view of the provisions of Order XXXIV, rule 1, C.P.C., the appellants were necessary parties having interest in the mortgage security and the rights of redemption, but they were not arrayed as such, therefore, mortgage decree cannot be executed/ enforced against the appellants and is liable to be set aside: It is also stated that the mortgage; qua the said plots, allegedly created by the other I respondents‑defendants, is in the nature of equitable mortgage, but in the original lease deed in favour of the mortgagers executed by the Cantonment Board, there is specific clause that no encumbrance shall be created without the permission of the Cantonment Board, resultantly, such mortgage was also invalid and illegally created, having no adverse effect upon the rights of the appellants.

3. Confronted with the above, learned counsel for the respondent‑Bank, without prejudice to the Bank's right to seek decree qua the aforesaid plots even in view of the objections raised by the appellant's counsel, has no objection, if while sustaining the judgment and decree B passed against respondents Nos.2 to 9, the appellants are permitted to be joined as party in the suit, having a right to file their leave application before the learned Banking Court.

4. In the light of above, let the respondent‑Bank file an amended plaint by arraying the appellants as the defendants in the suit, within a period of one month from, today i.e. by or before 28‑2‑2003, and the appellants shall have a right to file the leave application within 20 days thereafter, notwithstanding the issuance of any further notice to them by the Court. The decree of the learned Single Bench, dated 25‑9‑1998, shall remain in full force and effect against the respondents Nos.2 to

9. The case is remanded to the Banking Court No. 1, which shall decide the matter and till then, the decree regarding the two plots mentioned‑ above, shall remain in abeyance. Disposed of. S.A.K./K‑212/L Case remanded.