2008 PLP 1286 (CLD)

FAISAL ARAB, J.

Through this application the Intervenor seeks recall of the sale of the property bearing City Survey No.2170, which was sold in the present proceedings vide order, dated 18-1-2002. The case of the Intervenor is that this property was already mortgaged with it since 6-1-1983 under a registered Mortgage Deed against the finance facility that was obtained by respondent No.4 and in this regard a recovery suit bearing No.536 of 1989 was also filed by the Intervenor, which was decreed on 9-7-1992. Thereafter, the intervenor bank filed Execution No.78 of 1993 and procured order of attachment. However, while the Execution application was still pending, the Intervenor back came to know that this property has been sold in the present proceedings for recovery of the petitioner's outstanding amount. Learned counsel for the petitioner contends that equitable mortgage was created on the property in question on 15-11-1985 and to effect recovery the present proceedings were filed and order of attachment was obtained in 1988, which was confirmed by this Court on 10-8-1989. Thereafter, on 5-4-1999 the property was ordered to be sold. He contended that no response or objection was received by the Intervenor bank though sale was advertised through publication in newspapers. He therefore, contends that since no objection was received from the Intervenor at the relevant time, the matter has become past and closed transaction and the application may be dismissed. He however, very candidly conceded that the registered mortgage takes preference over equitable mortgage. On the other hand, learned counsel for the Intervenor bank has contended that the property was not properly described in the publications in the present proceedings as no name of the mortgagor was mentioned and that since the mortgage in favour of the Intervenor was made in 1983 no subsequent mortgagee can claim any preference. In my view as valuable right has been created in favour of this party through the Court sale and the auction purchaser has become bona fide owner for value, the sale cannot be set aside. However, the Intervenor being prior mortgagee is entitled to receive the amount of sale consideration which was recovered pursuant to the sale of the mortgaged property after deducting expenses incurred in the process of sale. According to the Official Assignee sale consideration has been paid to the petitioner. Therefore, the petitioner is directed to return the amount, which it received from the Official Assignee within 30 days whereafter, said amount shall be paid to the Intervenor-Bank. The petitioner however, shall be at liberty to seek recovery of this amount from the respondents. C.M.A. stands disposed of. H.B.T./I-18/K Order accordingly.