1. ' FAISAL ARAB, J.---This order shall dispose of application filed by the applicant Muhammad Mubeen under section 12(2), C.P.C. The applicant claims that he is owner of Bungalow No,A-211 measuring 240 square yards in Gulistan-e-Jouhar, K.D.A. Scheme No,36, Karachi which he purchased in the year 1995 from Mrs. Nayar Sultana Sylani wife of Khawaja Rehmatullah Sylani. The case of the Applicant is that Suit No,407 of 1993 filed for by Abdul Hameed seeking specific performance of the contract and for cancellation of lease deed in relation to the same bungalow was decreed on 2-12-1998 at Applicant's back as he was not made a party to the suit. The Applicant therefore seeks setting aside of the judgment and decree passed in Suit No,407 of 1993 in favour of Abdul Hameed.
2. ' Controversy in Suit No,407 of 1993.
3. ' In 1986, Lifelong Builders a partnership firm of Fayyaz Ahmed, Ch. Zufiquar Ali Syed Ahmad, Muhammad Aleemuz Zaman (the defendants No,1 to 5 in the suit) launched a housing project in Gulistane-Jouhar, K.D.A Scheme No,36, Karachi in the name and style of Long Life Houses for construction and sale of small town houses and bungalows. In the same year i,e, 1986, Abdul Hameed who was plaintiff in the suit booked the bungalow in dispute with the Lifelong Builders for a total sale consideration of Rs,475,000 and started making payments as per schedule of instalments. Abdul Hameed paid the entire sale consideration up to 1991. When the construction of his bugalow was completed in 1992, Abdul Hameed asked Lifelong Builders for its possession.
4. Longlife Builders however did not deliver possession and kept Abdul Hameed on high hopes. In the meanwhile, Abdul Hammed received a phone call by a person claiming to be a relative of Mrs. Nayar Sultana Sylani. The caller claimed that the bungalow in question has been purchased by Mrs. Nayar Sultana Sylani wife of Khawaja Rehmatuallah Sylani for Rs,1,050,000 and lease-deed has also been executed in her favour by Lifelong Builders. The caller also offered that in case Abdul Hameed is interested in buying the house for Rs,1,100,000 he can arrange with Mrs. Nayar Sultana Sylani to sell it for Rs,1,100,000. Abdul Hameed who had already purchased the same bungalow earlier from Lifelong Builders and made entire payment, sensed fraud. He first obtained copy of the lease-deed dated 14-10-1992 executed by Lifelong Builders in favour of Mrs. Nayar Sultana Sylani from the office of the Sub-Registrar mid filed Suit No,407 of 1993 seeking specific performance of contract against Lifelong Builders and its partners Fayyaz Ahmed, Ch. Zufiquar Ali, Syed Ahmad and Muhammad Aleemuz Zaman and also made Mrs. Nayar Sultana Sylani as defendant No,6 in the suit and sought cancellation of lease-deed executed by Longlife in her favour. Finally on 2-12-1998, suit for specific perfQrmance was decreed in favour of Abdul Hammed and the lease deed dated 14-10-1992 executed in favour of Mrs. Nayar Sultana Sylani was ordered to be cancelled. When Abdul Hamed sought execution of the decree from this Court, the present Applicant namely Muhammad Mubeen appeared on the scene, who filed the present application under section 12(2), C.P.C., raised claim to the bungalow on the basis of his transaction which he entered with Mrs. Nayar Sultana Sylani in 1995 during pendency of the suit and sought setting aside of the decree passed in the suit in favour of Abdul Hameed.
5. ' In the instant application filed under section 12(2) CPC, the Applicant Muhammad Mubeen has claimed that by a registered sale-deed executed in 1995, he purchased the bungalow from Mrs. Nayar Sultana Sylani for a total sale consideration of Rs,350,000. The Applicant claimed that before purchase of the bungalow he obtained Search Certificate from Sub-Registrar on 30-3-1995 wherein the owner of the house was shown to be Nayyar Sultana Sylani. The Applicant in his application claims that he has been victim of fraud, misrepresentation and collusion of Mrs. Nayyar Sultana Sylani and that he was not made party either in the suit or execution application and when the bailiff came to the bungalow on 19-4-2000 to take its possession he rushed to this Court and filed the present application. He further claims that the judgment and decree is not binding on the applicant as he was not party in the suit.
6. ' It is an admitted position that the bungalow was allotted to Abdul Hammed by Lifelong Builders in the year 1986 and he started paying instalments from 31-1-1986 and completed all payments by 12-10-1991. It is also an admitted position that in spite of receiving the entire sale consideration, Lifelong Builders executed lease deed of the bungalow in favour of Mrs. Nayar Sultana Sylani on 14- 10-1992. It is also an admitted position that the Applicant Muhammad Mubeen claims that in 1995 the bungalow in question was sold to him by Mrs. Nayar. Sultana Sylani who was defendant No,6 in the suit. At that time suit was still pending and interim injunction was in operation against Longlife Builders, its four partners and Mrs. Nayar Sultana Sylani herself.
7. ' In this background, the question which arises is that even if the. Applicant succeeds in establishing his claim that he purchased the bungalow from Mrs. Nayar Sultana Sylani in 1995, can he still succeed in getting the decree set aside which was passed in the suit in favour of Abdul Hammed. It is an admitted position that the Applicant derives his title from Mrs. Nayar Sultana Sylani on the basis of a transaction which took place in 1995 when suit against her was already pending and restraint order was in operation. The effect of restraint order and of section 52 of Transfer of Property Act on the transaction between the Applicant and Mrs. Nayar Sultana Sylani is to be examined in order to see whether the transaction has any legal validity in the eyes of the law so as to create any independent right, title and interest in the bungalow in favor of the Applicant and therefore he be allowed to establish his claim through a full inquiry after setting aside the decree passed in the suit.
8. Under section 52 of the Transfer of Property Act, no party to the suit can alienate the disputed property so as to affect his opponent. A party who has obtained decree in his favour is entitled to execute the decree not only against the person against whom decree was passed but also against person who derived title to the disputed property during the pendency of the suit. The change of title or transfer of possession during the pendency of the suit from the judgment-debtor to a third party is to be treated only symbolical title and possession, and there is no reason why the Decree Holder be not allowed to proceed also against the third party who is in actual possession of the suit property.
9. ' When a party to a suit sells disputed property to third party during pendency of the suit and ultimately he fails in establishing his title to it, the purchaser of such property cannot even seek protection of a bona fide purchaser in order to deprive the decree-holder the fruits of the decree.
10. The third party in whose favour title is transferred during the pendency of suit by a judgment- debtor is to be regarded only a representative of the judgment-debtor and the act of selling the property cannot be allowed to defeat the claim of the decree-holders merely because the property changed hands during pendency of the suit. This is so because the rule of lis pendens is applicable also to the third party. In such a case, he is not entitled to defend the suit independently from the judgment-debtor through whom he claimed ownership rights during the pendency of the suit. The judgment and decree passed against the judgment-debtor shall also be binding on the purchaser in the same manner and to the same extent as it was binding on the judgment-debtor.
11. ' In the case of Abdus Saeed Khan and 2 others v. Bashrat Ali and 13 others reported as PLD 1995 Lahore 255 it was held at page 258-259 as follows: "We are afraid, this contention of the learned counsel is devoid of any merit. Admittedly it was during the pendency of the suit for specific performance that the appellants had purchased the land in dispute from respondents Nos.5 to 16. The sale in their favour was, therefore, clearly hit by the doctrine of lis pendens which finds legislative recognition in section 52 of the Transfer of Property Act, 1882 "
12. ' Mian Iqbal Hussain, learned counsel for the appellants, however, attempted to argue that as the appellants were not aware of the pendency of the suit, the principle of lis pendens has no applicability to them. This contention of the learned counsel is again not legally sound. The doctrine of pendente lite is not simpliciter based upon the principle that filing of a suit is notice to the whole world but more so on the public policy that no one should be allowed to affect the rights of the parties pending the decision of cause before a Court of law. It is useful to refer to Beliamy v.
13. Shabine' (1857)1 De G. And J 566 in which the rationale on which the doctrine of lis pendens rests was propounded by Turner L.J. In the following words: "It is as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."
14. ' In the same case Lord Cranworth explained that the doctrine did not rest on the ground of notice and observed that: "it is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite- party."
15. ' In the case of Khair Din through L.R. v. Muhammad Iqbal and 2 others (1999 YLR 2589) it was held at page 2592-2593 as follows; "Further, the judgment and decree, dated 29-4-1972 passed in Civil Suit No,49 of 1972 in favour of the petitioners decided the status entitlement of the disputed property in favour of the petitioners.
16. In view of Article 56 of the Qanun-e-Shahadat Order, 1984, the judgment in Civil Suit No,419 of 1970, dated 29-4-1972 is conclusive proof as to what it states between Khair Din and Maqbool Ahmed.
17. Muhammad Iqbal claims under Maqbool Ahmed who was a party to the proceedings in which th said judgment was given. As such if he had taken the risk of getting sale-deed executed in his favour during the pendency of the said suit, he has done so at his own peril. Of course he has the right to get his sale consideration back from Muhammad Iqbal and the decree, dated 29-4-1972 cannot be made subject to the sale-deed which is subject to all consequences of the decree delivered by a Court of law competent to deliver it. The Plaintiff in that case played no fraud on the Defendant. It is the Defendant Maqbool Ahmed who played fraud with Muhammad Iqbal, knowing fully well that the matter was pending before the competent Court."
18. ' Reference can also be had to case of Usman v. Haji Omer Haji Ayub, and Haji Razzak reported in PLD 1966 SC 328 at page 336.
19. The effect of rule of lis pendens laid down in section 52 to a controversy like the present one is very clear. It provides that where the title of a litigant is already in dispute in a suit, then any alienation of the disputed property by such litigant to a third party is subject to the final outcome of the suit.
20. Upon failure of a party to a suit that alienated the disputed property, the transferee is stripped of his title to the suit property on the basis of rule of lis pendens. No legal proceedings are required to get the status of the transferee determined who claims title from an unsuccessful transferor. He is no more regarded as lawful transferee so as to seek protection of his title. He is to be regarded merely a representative of the unsuccessful transferee. The decree against a transferor pendente lite is as much executable as it is against the party who alienated the disputed property during the pendency of the suit.
21. ' Counsel for the applicant lastly submitted that on account of change in the pecuniary jurisdiction of this Court this application be sent to the Civil Court for adjudication. However in the written argument the applicant's counsel has stated that the Hon'ble Supreme Court in several cases has held that the application under section 12(2), C.P.C. Is to be filed in the same Court which passed the original order/decree. In a case reported as Anwarul Huda v. Fahimul Huda (PLD 2006 Karachi 155) I after relying upon Full Bench judgment of this Court reported as PLD 1981 Karachi 210 I held that this Court possesses concurrent jurisdiction along with the civil courts and therefore the present application filed under section 12(2), C.P.C. Is maintainable before this Court.
22. In the light of the above discussion, it is clearly established that Applicant is transferee of the disputed property pendente lite and as his transferor Mrs. Nayar Sultana Sylani has failed in the suit to establish her claim to the disputed property, therefore under the provisions of section 52 of Transfer of Property Act the Applicant cannot claim his independent right to the disputed property so as to seek the judgment and decree set aside under section 12(2), C.P.C. The application is therefore dismissed with costs.