MIAN SAQIB NISAR, J.----One Mst. Kalsoom Akhtar obtained a loan from the respondent/HBFC, for the construction of a house, on plot bearing Khawet No.142, Khatuni No.165, measuring 6 Marlas situated in Chak No.45/NB, Factory Area, Sargodha and mortgaged the plot as also the construction to be raised. However, she subsequently, sold the said property to Abdul Majeed with the permission of the HBFC, who undertook to pay the debt, with the property, still being mortgaged. Abdul Majeed thereafter sold the disputed house to Mir Badshah Khan, who thereafter made the sale in favour of Dost Muhammad the present appellant, but without any permission from the HBFC. The respondent/HBFC thereafter, brought a suit for the recovery of the amount of loan, due against Abdul Majeed, when the present appellant moved an application to be impleaded as party; the permission was granted; the case was contested by the appellant and the suit has been decreed.
2. The plea taken is, that the appellant is a bona fide purchaser, he had no knowledge about any encumbrance, charge or the mortgage of the said property and therefore, the property which has been purchased by him, through the decree of the Court in a suit for specific performance because Mir Badshah Khan cannot be made subject for the recovery of the amount. It is further stated that he has paid the entire sale amount.
3. I am afraid, both the contentions have no force; the property being mortgaged, when not redeemed, could always be subject to recover the loan by enforcing the mortgage and the appellant cannot take up the plea of bona fide purchaser, even if he has bought the property through a Court decree, which suit, I am told, was decreed within weeks on the consent of Mir Badshah.
As regards the contention that some money was paid to Mir Badshah Khan in pursuance to the decree for the specific performance passed in favour of the appellant, suffice it to say that the said amount was never towards the return a the loan amount of HBFC or paid to it. Thus if any fraud, misrepresentation as stated by the appellant's counsel has been committed by Mir Badshah, in this behalf; the appellant if so advised, may take legal action against him. But on account of the above, the property mortgaged for the purposes of discharge of the loan cannot be absolved of the charge/ encumbrance. Resultantly, the Court below has rightly allowed the suit of the respondent, to which no exception can be taken. Dismissed.