2016 PLP 102 (CLD)

SAJJAD ALI SHAH, J.

Through this appeal, the Appellants as legal heirs of Judgment Debtor/mortgagor, who were joined after the death of their predecessor-in-interest pending suit, seek setting aside of Judgment and Decree dated 14.09.2010 passed by this Court on 14.09.2010 in Banking Suit No.22 of 2008 for Rs.84,305,575/- against the Respondent No.2 as principal debtor and the Appellants / legal heirs as mortgagors. Briefly, the Respondent No.2 had obtained certain finance facilities from the Respondent No.1/Bank against mortgage of Appellant's property. It appears that on failure of the Respondent No.2 to repay the facility recovery proceedings were initiated which resulted in decree against the Appellant as well as the Respondent No.2 as principal debtor as well as appellant as mortgagor. Counsel for the Appellants contends that in fact the predecessor of the Appellants had obtained loan of approximately Rs.1.000 (M) from the Respondent No.2 and to secure the repayment of such loan title documents of their house were deposited as security. According to the counsel the Respondent No.2, without any authority mortgaged that very property with the Respondent No.1/Bank and obtained heavy finance facilities which were unauthorized and unlawful, and therefore, no decree on the basis of such mortgage can be sustained. It was lastly contended that the appellant's predecessor-in-interest during his lifetime had filed a Suit No.25/2007 before the Vth Civil Judge, Malir, seeking permanent and mandatory injunction against the respondent No.2 restraining him from misusing or destroying the original title documents which suit did not bring any result. It was, therefore, prayed that by allowing this appeal judgment and decree be set aside. On the other hand counsel for the Respondent contends that the predecessor-in-interest of the Appellants had executed a registered power of attorney in favour of the Respondent No.2 in respect of the mortgaged property empowering him to mortgage and/or sell the subject property. The Respondent No.2 on the basis of such power of attorney had mortgaged the subject property in favour of the Bank by depositing the original title documents. As to filing of the suit, it was pleaded that the bank was never a party in that suit and it was a sham attempt to wriggle out from the liability created by the appellant's predecessor-in- interest upon registering power of attorney and creation of mortgage. It was pleaded that the appellants were full in knowledge that the Respondent No.2 has mortgaged the property with the Respondent No.1 and to that effect even without impleading the Respondent No.1 in Civil Suit initiated contempt proceedings but without any legal effect, as redemption was never sought and ultimately the suit was dismissed on account of non-prosecution. It was, therefore, prayed that the appeal be dismissed and the judgment and decree be sustained. In response Ms. Raana Khan has placed reliance on the judgment of Apex Court in the case of Pirzada Niaz Ahmed Farooqi v. Muhammad Bux (2004 SCMR 862) and Muslim Commercial Bank Limited v. Tariq Saeed (2004 CLD 920) to plead that on account of negligence of a counsel if a suit is dismissed on account of non- prosecution the appellant cannot be blamed. We have heard the learned counsel for the respective parties and examined the record. The record reflect that the Respondent No.2 i.e. the principal debtor did not challenge the Judgment and Decree whereas the Appellants' predecessor in interest had executed a General Power of Attorney in favour of the Respondent No.2 which was duly registered on 29.05.2006 empowering the Respondent No.2 to sell, transfer, gift or mortgage the said property. The Respondent No.2 while exercising such powers conferred upon him by the Appellants' predecessor-in -interest through the registered power of attorney mortgaged the subject property with the Respondent No.1 Bank securing repayment of the entire outstanding liability. As to filing of suit, in order to gauge the genuineness of the defence, we had summoned the Records and Proceedings of Suit No. 25 of 2007 and after examining the file have come to the conclusion that the suit was just a sham, as it was never seriously pursued nor redemption of the property was sought. It is also important to observe that the appellant had after coming to know that the Respondent No.2 has mortgaged his property with the Respondent No.1/Bank through a Power of Attorney had initiated contempt proceedings against the Respondent No.1/Bank, but never arrayed the Respondent No.1/Bank as defendant nor sought any declaration as to the status of the mortgage or in respect of the property documents and or sought cancellation of Power of Attorney and ultimately allowed the suit to be dismissed on account of non-prosecution. The suit was dismissed during lifetime of the Appellants' predecessor-in-interest i.e. on 17.08.2007 and thereafter the Appellants' predecessor-in-interest half heartedly filed restoration application on 30.08.2007 which ultimately was also dismissed on account of non-prosecution. The record of the Banking suit out of which the impugned judgment and decree arises further reflects that though the respondent No.2 had filed a belated leave to defend application and the appellants after joining the proceeding moved an application under Order VII, Rule 11, C.P.C., but those applications were also not contested and ultimately were dismissed on 16.04.2010 on account of non-prosecution. The suit was decreed after five months of dismissal of the appellant's application, but no attempt whatsoever was made either to file an application seeking leave to defend the suit or to get their application under Order VII, Rule 11, C.P.C. restored. No ground whatsoever for interference with the Judgment and Decree has been made out, however, we have found out that on the basis of registered Power of Attorney registered Mortgaged Deed for Rs.100,000/- along with Memorandum Deposit of Title Deed with maximum liability of Rs. 30.000 (M) was executed, therefore, in our opinion the liability of the Appellant's predecessor-in-interest cannot exceed for more than Rs. 30.000 (M). Let amended decree accordingly be drawn. SL/M-86/Sindh Order accordingly.