1. ' KHILJI ARIF HUSSAIN, J.---Aggrieved from the order dated 14-4-2002 passed by the Banking Court No.IV Karachi dismissing the application under section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 read with section 21 Rule 58, C.P.C. And an application under section 12(2), C.P.C., the appellant preferred this appeal.
2. ' Brief facts for the purpose of disposing of the appeal are that the respondent-Bank filed Suit No.5 of 1997 for recovery of Rs.59,63,656 against Messrs Qutubuddin & Company a proprietorship firm of late Qutubuddin who is the father of the appellant. At the time of filing the suit late Qutubuddin was alive and joined as defendant.No.2 in the Suit being mortgagor of property bearing No.2-41-J PECHS. Late Qutubuddin filed a written statement on his behalf as well as on behalf of proprietorship firm before the Banking Court, and after framing of the issues learned Banking Court recorded evidence of the parties including evidence of Late Qutubuddin and pronounced judgment and decree on 26-1-2000. The learned Banking Court also passed final mortgage decree in respect of the property in question. After passing of the judgment and decree the applicant applied for the execution of the decree and learned Banking Court passed order for the sale of mortgaged property.
3. ' The appellant filed an application under section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 and an application under section 12(2), C.P.C. Praying that to set aside execution application as well as the judgment and decree passed by the learned Banking Court who after hearing the parties dismissed both the applications. Against the said order this appeal has been preferred.
4. ' Heard. Mr. Anwar Muhammad Khan, learned Advocate for the appellant and Miss Lubna Aman, learned Advocate for the respondent.
5. ' Mr. Anwar Muhammad, learned Advocate for the appellant argued that on 29-11-1993 when the property in question was mortgaged by the deceased Qutubuddin the same was not owned by him and as such decree was obtained by fraud and misrepresentation. Learned Advocate further argued that the judgment and decree have been passed by the Banking Court after the death of Qutubuddin without bringing legal heirs on record therefore same is nullity in the eye of law and liable to be set aside.
6. ' On the other hand Miss. Lubna Aman, learned Advocate for the respondent argued that the Banking Court has passed the decree after recording evidence of the parties including the evidence of late Qutubuddin and merely because legal heirs of the deceased were not brought on record will not effect in any manner the judgment and decree passed by the Banking Court. The learned Advocate further argued that the appellant has failed to bring on record any evidence in support of his contention that on the date when the equitable mortgage was created the deceased was not the owner of the property in question.
7. ' We have taken into consideration respective arguments advanced by the learned Advocates of the parties and also perused the record. From the Application under section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 filed by the learned Advocate on behalf of the appellant it appears that in the said application the appellant has stated that he came to know about the sale of the mortgaged property when he noted/notice of sale was published in the Daily Jang of 28-6-2001 and on inquiries he came to know that equitable mortgage has been created in respect of the property on 29-11-1993. The appellant alleged that he is the lawful owner. And holding documents of title of the property in question since 15-7-1998. He further alleged that the decree was passed after the death of Qutubuddin and is liable to be set aside in respect of the sale of the said property. Almost similar allegations were made in the application under section 12(2), C.P.C. Read with section 12 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997. Along with the application photocopy of a letter dated 1st August, 1980 addressed by PECHS to late Qutubuddin informing about the transfer of the plot, in question in favour of Mrs. Khursheed Begum was annexed. The appellant further annexed transfer order dated 16-11-1999 transferring the plot from the name of Mrs. Khursheed Begum to Appellant. The respondent filed objection to application and stated that deceased Qutubuddin had availed the facilities from the Decree-Holder Bank and as continuing security of the outstanding dues mortgaged his property and address letter dated 29-11-1993. In the memo. Of plaint Decree Holder/Bank specifically stated that the respondent-Bank agreed to grant financial facilities to deceased Qutubuddin who deposited title documents of the property envisaged as a security and created mortgage in respect of the said property. Late Qutubuddin filed written statement in March, 1997 and admitted his ownership and further not specifically denied that the property in question has not been mortgaged by him except alleging that he did not execute mortgage deed of his property. The denial of allegation of creating mortgage was an evasive denial tantamount to an admission on the part of the deceased that the deceased was the owner of the property in question and that the same was mortgaged by him as security for the finance availed by him from the respondent. On examination of rules 4 and 5 of Order VIII one can say that if the allegation of fact in the plaint if not denied specifically or by necessary implication the same shall be taken to be admitted. The matter does not end here the respondent witness filed affidavit-in-evidence and again stated in the said affidavit that the deceased Qutubuddin requested for the finance against the mortgage of the property in question and created equitable mortgage and deposited title documents in respect of the property in question but during the course of cross-examination learned Advocate failed to make any suggestion that the deceased was not the owner of the property in question or that the property was not mortgaged by him as security for the repayment of the finance availed by him. Late Qutubuddin also filed .Affidavit-in-evidence and in the said affidavit he has not stated that property was owned by him or that the property in question is owned by his son the appellant. In the letter dated 15-7-1999 addressed by Ghyiasuddin and Nadeemuddin both brothers of the appellant available on record validity of gift by late Khursheed Begum in favour of the appellant has been questioned by them and it alleged in the letter that the appellant had made a false affidavit in this regard. One more letter is also available on record addressed by Masood Akhtar in which he alleged that the ground floor of the said property was gifted by the deceased Khursheed Begum in his favour. The appellant has failed to establish that the judgment and decree have been obtained by the respondent-Bank by fraud and misrepresentation.
8. ' As regard the contention of the learned Advocate for the appellant that the judgment and decree have been pronounced after the death of deceased Qutubuddin the same is mute without any force.
9. Order XXII, rule .6 provides that whether cause of action survives or not, there shall be no abatement by reason of death of either .Party between the conclusion of the hearing and the pronouncing of the judgment and the judgment in such a case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. In the instant case judgment has been pronounced by the Banking Court after recording of evidence of the parties and as such we are of the view that the judgment and decree was pronounced after conclusion of the hearing and the death of the deceased does not abate the suit, or affect the judgment and decree in any manner.
10. ' For the foregoing reasons the appeal is dismissed however with no order as to costs.