1. ' The appellant is aggrieved by the impugned order dated 23-9-2002, whereby his objection under rule 58 of Order 21, C.P.C. Against the sale of the mortgaged property was dismissed.
2. The facts connected with the present appeal are that the respondent No.2 obtained a decree dated 24-4-1999 in Suit No.615 of 1995, for foreclosure of the mortgaged Property Bearing No.46 Block 16-D, Category C-1, Scheme, North Karachi Township against respondent No.1, Sajida Khatoon.
3. The respondent No.2 filed Execution Application No.53 of 2000, for sale of the mortgaged property.
4. The appellant received notice from Nazir, as a consequence thereof he filed an application under Order 21 rule 58, C.P.C. For recall of the attachment on the ground that he is purchaser of the property put to sale but after the creation of equitable mortgage by respondent No.1 in favour of respondent No.2. The application was resisted by the respondent/decree-holders. The learned Single Judge, on Original Side seized of the execution proceedings, dismissed the objection by the impugned order. Hence the present appeal.
5. ' We have heard the learned counsel for the parties.
6. ' Learned counsel for the appellant has taken the same pleas which were taken by the appellant in support of the objection in terms of Order 21, rule 58, C.P.C. But were not favoured by the learned Judge.
7. ' The pivotal point in the appeal is whether the provisions of rule 58, Order 21, C.P.C. Can be resorted to against the sale of property in mortgage decree.
8. The rule pre-supposes the existence of an attachment and the plea is that the property is not liable to attachment, where there is no attachment at all in execution, an objection under this rule is incompetentagainst the sale in mortgage decree. If any reference is required, the cases of (i)
9. Nallaperumal Chetti v. Valliyappa Chetti and others (AIR 1930 Madras 721), (ii) Balijepalli Ramakoti Suryanarayana Tanodar and another v. Kampalli Ramchanndrudu and others (AIR 1932 Madras 716) and (iii) Hafiz Muhammad Ibrahim v. Bhagwan Das (AIR 1935 Allahabad 897) may be referred.
10. ' The observation made by the learned members of the Division Bench of Allahabad High Court in last case is relevant to the point in issue, which is reproduced as follows:-- ' The position of Muhammad Ibrahim is really that of a stranger to the proceedings and his remedy would have been if it were a case of an objection under Order 21, rule 58, but as it was a mortgage decree for sale, that rule has no application, and the question of the title of Muhammad Ibrahim cannot be decided in the proceedings under section 47, C.P.C.' (emphasis underlined).
11. ' In view of the settled proposition of law, there is no legal infirmity in the impugned order. The appeal has no merits and is dismissed with listed - application, however, with no order as to costs.
12. ' If appellant intends to redeem the mortgage, he can redeem the same by depositing the decretal amount within two weeks of the order.