2002 PLP 723 (CLD)

MUSHIR ALAM, J.‑‑‑The appellant has filed this first appeal under section 21 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, ‑1997 challenging the judgment dated 28‑3‑1998 and decree, dated 30‑4‑1998 respectively passed by Banking Court No. 1, Karachi, in Suit No.751 of 1997 filed by respondent No.1, Allied Bank of Pakistan against the respondents Nos.2 to 4 and the appellant herein. Briefly stating, facts relevant for disposal of this appeal are that the respondent No.1 filed a suit for recovery of Rs.6,182,582 against respondent No.2, Messrs A.H. Traders, Proprietorship concern of one Bahadur Heamani, who is also cited as defendant No.2 in the suit and the respondent No.3 herein, one Muhammad Ali and the appellant as a Mortgagor and Guarantor for the finance advance to the Proprietorship concern of respondent No.3. Main thrust of the arguments of learned counsel for the appellant was that she had never executed any mortgage of the property, by deposit of title documents with the respondent No.1, Bank, It was further claimed that respondent No.3 ire capacity of her attorney was not duly authorized to create a mortgage in respect of the subject property'. Mr. Saalim Salam Ansari, learned counsel for the appellant further contended that before creation of mortgage, subject property was sold by way of registered sale?deed on 24th May, 1993 in favour of the third party. The third party was not joined in the proceedings, therefore, no Mortgage Decree could be passed against the subject property. As against above, Mr. Rizwan Ahmed Siddiqui, learned counsel for the respondents supported the judgment and decree and asserted that no defence was disclosed in the leave to defend application and the appellant has not denied that she had executed the power of attorney in favour of the respondent No.3 and furthermore, the appellant herself executed the Guarantee to secure the repayment of loan. We have heard the arguments of learned counsel for the parties, since only the application under section 21(1) of, the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 was fixed for hearing and learned counsel can for the appellant pressed for stay of the impugned judgment and decree passed by the Banking Court No. 1, Karachi referred to above, entire appeal was heard and is being disposed of on merits. From the record, it appears that the loan advance to respondent No.2 by the respondent No. 1 was secured against the Promissory Note, Guarantees, Trust Receipt including mortgage of properties by the appellant and respondents Nos.3 and 4 of their respective properties including subject property bearing Bungalow Nd:2, Plot No.GRE/ 133/2, Garden East, Karachi. From the record, it also appears that the mortgage was created in respect of the said property by way of Memorandum. of Deposit of title deed, dated 22‑12‑1994 (which is available at page 49) executed by respondent No.3 as an attorney for the appellant. Said respondent No.3 is the beneficiary of loan, being proprietor of respondent No.2. The respondent No.3 had sworn an affidavit to the effect that he is duly constituted attorney of the appellant (available at page 57). Assertion of Mr. Saalim Salam Ansari, learned counsel for the Appellant that since the property was already sold to a third person through Registered sale‑deed, dated 24th May, 1993, as such, as said property was not available for creating equitable mortgage, prima facie, appears to be impressive and convincing but, when we examined the sale‑deed, it transpired that the sale‑deed was executed .by the respondent No.3 as an Attorney of the appellant in favour of his own son, Hussain Heamani. Such sale‑deed ‑is available at page 95 of the file. The appellant has not disputed that she had executed the power of attorney in favour of respondent No.3. It is only asserted that the subject property was not available for mortgage at the relevant time, we are afraid such argument is not available to her as from her own showing she was divested of the owner. hip of the subject property, she cannot question the judgment and decree which is based on Mortgage. Admittedly, she is not the owner of the subject property and as far as the mortgage decree is concerned, she is not an aggrieved person, as the purported owner who happens to be the son of beneficiary has not questioned or impugned the judgment and decree. Interesting enough the address shown by the appellant in her leave to defend application, as well as in this appeal is that of the subject property, which smacks mala fide on the part of the appellant to deprive the respondent No.1 of the fruit of the judgment and decree. The fact that the respondent No.3 had sworn his affidavit as to the validity of the authority, though apparently he had executed the sale‑deed of the property in favour of his son. All such devices and means evidently were employed in order to avoid the judgment and decree passed in favour of the respondent No.

1. Even otherwise, the appellants has not questioned or disputed the execution of the guarantee (available at page 59). No exception can be taken to the judgment and passed against the appellant on the basis of such guarantee. Accordingly, we do not find any merit in this appeal and the same is dismissed alongwith the listed application. Q. M.H. / M.A. K. / R‑61 / K ???????????????????????????????????????????????????????????? Appeal dismissed.