1. ' GULZAR AHMED, J.---Counsel for the parties have been heard on the maintainability of the suit which question has arisen for the reason that suit property stands mortgaged by defendant No,1 with the defendant No,5 Allied Bank of Pakistan, who has filed the suit in the Banking Court for recovery which suit stands decreed and in execution mortgaged property was ordered to be sold and the agreement to sell the mortgaged property was made between plaintiff and defendant No,1 while the suit stood decreed by the Banking Court and execution was pending attracting the provisions of section 23 of Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance) rendering the agreement to sell a void document.
2. ' Learned counsel for plaintiff has contended that plaintiff has entered into agreement dated 19-12- 2002 with the defendant No,1 for purchase of the suit property and in this respect has made payment of 5% of the consideration amount. He has contended that further payment was not made for the reason that there was a stay order operating in suit No,589 of 2004 and that plaintiff has also been put in possession of the first floor of the suit property. He has contended that by virtue of agreement to sell the plaintiff has acquired ownership right in the property.
3. ' Mr. Syed Zaki Muhammad, learned counsel for defendant No,3 has contended that the order rejecting the plaint of Suit No,589 of 2004 has been challenged by filing a High Court appeal, in which stay order has been passed.
4. ' Mr. Abdul Majeed, learned counsel for defendant No,5 has contended that suit has been filed only to frustrate the defendant No,5's efforts to recover its dues inasmuch as the suit property was put to auction by the Banking Court in the execution proceedings but such auction could not materialize because of stay order obtained in Suit No,589 of 2004 and that the suit is barred under section 23 of the Ordinance and that plaintiff is not the owner of the suit property.
5. ' I have considered the submissions made by learned counsel and have- gone through the record.
6. ' The plaintiff has filed this suit for declaration, permanent injunction, possession, cancellation and recovery of the documents. The plaintiff claims that she has entered into an agreement to sell dated 19-12-2002 with the defendant No,1 for purchases of double storey bungalow on plot No, B-1, Block-VI, Gulshan-e-Iqbal, Karachi, (said property) measuring 400 Sq. Yards for a total consideration of Rs,48,00,000 which is stated to have been paid to the defendant No,1 on the date of agreement with admission of liability of the Bank which the plaintiff has undertaken to discharge and the plaintiff was also put in possession of the said property. The agreement also provided that defendant No,1 will execute and register general power of attorney in favour of the plaintiff or her nominee. Plaintiff has further alleged that the defendant No,1 has appointed defendant No,2 as his attorney on the basis of which the defendant No,2 had entered into agreement of sale dated 24- 12-2003 with the defendant No,3. The defendant No,3 had filed Suit No,589 of 2004 for specific performance of the said agreement and further plaintiff learnt about a fake and forged gift dated 4-1-1984 being claimed by defendant No,6 from defendant No,
1. Plaintiff filed this suit claiming declaration that she is rightful and lawful owner of the said property and seeking further declaration that the sale agreement dated 24-12-2003 and the gift dated 4-1-1984 are illegal documents and that gift be cancelled and defendants Nos.2 and 5 be directed to handover the original title documents of the said property.
7. ' As is apparent from the contents of the plaint and the prayer made in it, plaintiff is seeking declaration of ownership of the said property on the basis of agreement to sell. Plaintiff also claim that the defendant No,2 has executed a sub general power of attorney dated 27-4-2006 in her favour. So far the question of power of attorney of defendant No,2, the same has been elaborately considered in the order dated 19-12-2008 passed in Suit No,589 of 2004, by which the plaint of said suit was rejected under Order VII, rule 11, C.P.C. The relevant portion dealing with the said power of attorney in the said order is as follows:-- "Another interesting aspect dealing with the bona fide of the transaction between plaintiff and defendant No,1 and having bearing on the cause of action is that the plaintiff claims to have entered into agreement to sell of the suit property with the attorney of defendant No,
1. The power of attorney, which has been filed with the plaint as annexure 'D' contains signatures of purported attorney namely Suhail Majeed Malik, which is altogether different from the one which appears on agreement to sell. Further, the signature of executants of power of attorney is not authenticated by High Commission of Pakistan at Dacca as is required by Article 95 of Qanun-e-Shahadat, inasmuch as the authentication that has been made is only in respect of signatures of Suhail Majeed Malik, the purported attorney, and not that of executant. The power of attorney on the basis of which the agreement to sell is said to have been signed has no presumption in its favour of its correctness nor on the face, the signature of attorney on the power of attorney and that on the agreement to sell at all tally or seem to be of one person."
8. Though the signatures of the attorney on the power of attorney and on the sub power of attorney appear to be the same but the very fact that power of attorney is not authenticated as per Article 95 of Qanun-e-Shahadat, no benefit can be given to the sub power of attorney.
9. ' Further, section 54 of the Transfer of Property Act specifically provides that agreement to sell itself does not create any interest or charge on the property. As the sale of the immovable property of the value of one hundred rupees and upwards can be made only be a registered instrument. No registered instrument of sale of the said property exists in favour of the plaintiff and there appears to be no possibility of the plaintiff getting the relief of declaration of ownership of the said property.
10. ' The fact that said property is mortgaged with defendant No,5, namely Allied Bank of Pakistan, who had filed a suit for recovery against defendant No,1, which suit was decreed and in the Execution Application No,9 of 2000 filed by the Bank, the said property was put to auction are not in dispute.
11. The plaintiff claims that because of the stay order passed in Suit No,589 of 2004, the plaintiff could not pay the Bank dues. In Suit No,589 of 2004, plaintiff was not a party in which an order dated 28- 5-2004 was passed whereby on deposit of 50% of balance sale consideration within ten days with the Nazir the defendants are restrained from creating any third party interest in the subject property. It appears that the execution proceedings filed by the Bank continued and the said property was put to auction and bids were received upon which on 8-8-2008 an order was passed in the said suit whereby the Executing Court was restrained from confirming the bid. As stipulated in the agreement to sell which was made on 19-12-2002 upto date of the order dated 8-8-2008, plaintiff has not paid the Bank dues which fact in itself demonstrate the conduct of the plaintiff about the implementation of transaction of the said property. Without forming any conclusive opinion on such aspect of the matter, the admitted position is that the plaintiff had entered into an agreement to sell the said property while the Execution Application No,9 of 2000 filed by the Bank was pending. Subsection (2) of section 23 of the Ordinance, inter alia, provides that after pronouncement of judgment and decree by the Banking Court, no judgment debtor shall without prior written permission of the Banking Court transfer, alienate, encumber or part with possession of any assets or properties and any such transfer, alienation, encumbrance or other disposition by a judgment debtor in violation of this subsection shall be void and of no legal effect. The defendant No,1 is judgment-debtor in Execution Application No, 9 of 2000 filed by the Bank in which the said property is a mortgaged-property. The said agreement squarely comes within the ambit of subsection (2) of section 23 of the Ordinance and thus makes the said agreement void and of no legal effect. Consequently plaintiff has not acquired any right in the said property to maintain a suit for declaration in terms of section 42 of Specific Relief Act and thus cannot maintain this suit.
12. ' After hearing the counsel for the parties on 25-2-2009, by a short order the plaint was rejected under Order VII, rule 11, C.P.C. Above are the reasons for the same.