P L D 2011 Lahore 620 (PLP)

SYED KAZIM RAZA SHAMSI, J. This regular first appeal is directed against a judgment and decree dated 23-4-2005 passed by Mr. Arshad Hussain, learned Civil Judge, Lahore whereby he passed a preliminary decree against defendant No.1 of the suit with the direction to pay the suit amount along with mark up at the prevalent bank rate from the date of institution i.e. 2-10-2003 till the realization of the decretal amount. The suit to the extent of respondents Nos.2, 3 and 4 was dismissed.

2. Sharjah National Travels and Tourist Agency incorporated under the laws of United Arab Emirates having its registered office at 4-Mozang Road, Lahore, instituted a suit for the recovery of Dhs.2,93,338 or equivalent to Pakistani currency along with 9% per annum interest, by the sale of mortgaged property mentioned in para.6 of the plaint. It was further averred /that defendants Nos.2, 3, and 4 were pro forma defendants, against whom no relief was claimed and that defendant No.1 Shahid Siddique is the real brother of defendant No.4 Irfan Ashiq. According to the claim of the plaintiff, an amount of Dhs.4,45,000/- became due towards defendant No.1 during the business dealing in respect of which amount, four cheques were issued by defendant No.4 in favour of the plaintiff. The cheques were not encashed due to insufficient funds when defendant No.1 offered to liquidate the liability and furnishing of guarantee till the payment of the amount due. As per plaint, to liquidate liability created by dishonouring four cheques issued by defendant No.4, defendant No.1 created an equitable mortgage by depositing the title documents and issued the post-dated cheques. It is further averred in the plaint that defendant No.1 made partial payment of due amount and further issued post-dated cheques for balance amount of Dhs.2,26,500/-which were to be cleared within two years time. It is in the plaint that defendant No.1 in order to secure the re-payment of amount, executed an agreement on 28-10-1998 to create mortgage. When the cheques issued by defendant No.1, were dishonoured, the plaintiff instituted the instant suit, praying for decree of 2,93,

33. Dirhanu or for an amount equivalent in Pakistani currency.

3. The defendants did not appear in the court despite the substituted service, as such, they were proceeded ex parte. The court then recorded the ex parte statement of Muhammad Shabbir Khan P.W. special attorney of the plaintiff who tendered certified copy of "Mukhtar Nama", proceedings and decree of the court at Dubai along with copy of mortgaged-deed (which in fact is an agreement to create mortgage Exh. P.13) and affidavit of defendant No.1. Subsequently defendant No.1 appeared in the court and filed an application for setting aside the ex parte order along with application seeking rejection of the plaint.

4. In the application, it was averred by defendant No.1 that he had not executed any mortgage deed and his signatures were, obtained at U.A.E. on certain documents by the plaintiff by exerting undue influence. Further submitted that the property had already been sold to one Kh. Abdul Wasee who alienated the same in favour of Mst. Anwaar, thus, it is the stand of defendant No.1 that the property cannot be sold for the recovery of mortgage money.

5. The applications were resisted by the plaintiff of the suit whereafter the court proceeded to dismiss the application filed under Order IX, rule 7, C.P.C. The court further proceeded to dismiss the application of defendant No.1 filed under Order VII, rule 11, C.P.C.

6. Later on, the court vide judgment and decree dated 23-4-2005 held that the suit was filed under Order XXXIV, C.P.C. in respect of a mortgaged property holding that mortgagee can either sue for foreclosure or for sale of mortgaged property while the plaintiff opted for second option as such, decreed the suit in the above terms.

7. We have considered the submissions made by the learned counsel for the appellant.

8. The first question which cropped up for determination is whether the decree granted by the Court at Dubai can be executed in Pakistan without having been adjudged through a separate suit. The answer of this query is provided in section 44-A of Code of Civil Procedure, 1908, which provides that the decree of those courts having reciprocating territory could be executed in Pakistan. There is nothing on the file to show that the Kingdom of U.A.E. is the reciprocating territory within the meaning of explanation 2 of section 44-A of the Code. This fact of reciprocating territory is to be notified by the Federal Government in the official Gazette declaring the reciprocating territory as such. In the instant case, in absence of any such notification, a foreign judgment cannot be treated as a conclusive in the matter, within the meaning of section 13 of Code. In view of this legal proposition, we are constrained to hold that the judgment passed by the court at Dubai and the decree granted there as per Ex.P.3 to Ex.P.9 unless same are established by way of separate suit in terms of section 13 of the Code of Civil Procedure cannot be executed in Pakistan.

9. The learned trial court has also committed another illegality while decreeing the suit by presuming that the agreement to create mortgage is in fact a mortgage. The document is available on the record as Ex.P.13 which clearly manifests that it was an executory document which did not attain the form of mortgage deed. Only mortgage created in forms provided under section 58 and onwards of Transfer of Property Act, 1882, are enforceable through court. The perusal of the judgment of the learned trial court shows that it was in great hurry to decide the matter expeditiously as it failed to note down the legal aspect of the case. Accordingly the judgment delivered by the learned trial court has no sanctity in the eyes of law which is liable to be set aside.

10. Accordingly, the appeal in the above terms is accepted by setting aside the impugned judgment and decree dated 23-4-2005. The case is remanded to the learned trial court for deciding the same afresh after providing opportunity to the appellant to contest the same on merits. The case shall be tried by learned Senior Civil Judge, Lahore himself. The parties shall appear before the learned Senior Civil Judge, Lahore on 19-7-2011. M.H./S-106/L????????????????????????????????????????????????????????????????????????????????????? Case remanded.