2003 PLP 1529 (CLD)

Muhammad Sharif Khokhar for Appellant. Syed Fazal‑ur‑Rehman for House Building Finance Corporation. Habib‑ur‑Rehman for Respondents Nos.3 and

4. The property in question is 3 Marlas house in Main Bazar; Kharak. The said house was owned by Mst. Shahida Dilshad who, as per record, sold the same in favour of her husband through a registered sale‑deed dated 19‑6‑1982. In the year 1982 the husband mortgaged the said house with the House Building Finance Corporation, and procured two loans of Rs.94,000 and Rs.40,000 respectively. Thereafter Mst. Shahida Dilshad on the basis of her earlier title which she had passed on to her husband, sold the house to one Yaqoob in the year 1988. The said Yaqoob further sold this house in 1992 in favour of present appellant.

2. On 7‑9‑1999 the Bank‑respondent brought a suit against the husband of Mst. Shahida Dilshad which was ex parte decreed to the tune of Rs.2,88,831 on 14‑4‑2000. In satisfaction of this decree, Mst. Shahida Dilshad or the legal heirs of Dilshad Ahmad her late husband, has already paid Rs.1,34,000 which covers the principal amount. However, the decree yet remained unsatisfied, resultantly, the House Building Finance Corporation filed an execution petition in which the aforesaid property was attached and was ordered to be auctioned, whereupon the appellant brought an objection petition stating that he is the owner of the property and it cannot be sold in execution of the decree. This objection petition has been dismissed vide order dated 30‑11‑2002. Hence this appeal.

3. We find this to be a case of serious hardship. The husband of the present respondent No.4 who has mortgaged the property and procured the loan has died. He is survived by his widow Mst. Shahida Dilshad, a disabled son, two young daughters and a minor son. She is present in Court and states that she is unable to pay the balance decretal amount, whereas the case of the appellant is that in fact Shahid Dilshad has played a fraud in selling the property to Yaqoob, despite knowing that she is not the owner, having sold the same in favour of her husband, who obtained the loan by mortgaging the house in question with the House Building Finance Corporation. Anyhow the appellant as also Mst. Shahida Dilshad in order to avoid further consequences have agreed that both shall share a part of the decretal amount to the extent of Rs.50,000 each. They have requested that the decree‑holder must waive of the decretal amount, except Rs.1,00,000, which is above Rs.80,

000. We have asked the learned counsel for the bank who on instructions states that only the demand charges amounting to Rs.28,000 can be waived but not the mark‑up. However, he concedes that the amount equal to the principal loan amount has been paid by Mst. Shahida Dilshad respondent No.4. When further questioned, the respondent's counsel has not been able to state the exact rate of mark‑up on the basis of which the claimed amount has been‑ calculated. However, from the admitted position of the record that the principal amount has been repaid by respondent No.4 and from the period of its repayment; we are of the view that approximately an amount of Rs.80,000 has been excessively charged by the decree‑holder.

4. Resultantly, we hold that on the payment of Rs.50,000 each by the appellant and respondent No.4 within a period of six months from today, the whole decree shall stand satisfied and discharged. In case the appellant does not pay her share, the property in question can be sold in execution of the entire decretal amount and in case of the failure of respondent No.4 to pay the amount, the appellant may pay the share, of said respondent to save the property from auction. But can initiate proceedings against her for committing fraud. S.A.K./S‑608/L Order accordingly.