1. For orders on C.M.A. No,270 of 2009 ' MUHAMMAD TASNIM, J.---This is an application (C.M.A. No,270 of 2009) under section 151, C.P.C.
2. Filed by applicant Messrs Republic Motors (Pvt.) Limited praying therein as under:-- "In view of the above stated facts and circumstances it is prayed that this honourable Court may be pleased to direct the official assignee of this honourable Court to collect the amount wrongly paid to the Decree Holder (Messrs National Bank of Pakistan) in above execution Application and deposit the same in his account till the disposal of this application, and to pay the applicant his share as per decree in Execution Application No,54 of 2006, in the interest of justice."
3. ' After service of notice of this application, National Bank of Pakistan filed its counter-affidavit to such application wherein the contentions of the applicant were denied. It was further stated in the counter-affidavit by the D.H. That the decree passed in suit of applicant being Suit No,67 of 1995 was money decree and the same was not a mortgage decree. It was further claimed in the counter-affidavit that order dated 27-1-2009 was passed in presence of learned counsel for the applicant but no appeal against order dated 27-1-2009 was filed by the present applicant. On other grounds mentioned in the counter-affidavit it was prayed that application of applicant merits no consideration and liable to be dismissed.
4. ' Mr. Muhammad Abdul Aziz Khan, learned counsel for the applicant, in support of his application has invited my attention to memorandum of equitable mortgage dated 27th August, 1992 filed along with the application as also letter dated 9th August, 1992 by the former NDFC now merged in National Bank of Pakistan stating it's no objection for creation of pari passu charge on the fixed assets of Messrs Naya Daur Motors (Pvt.) Limited. Learned counsel for the applicant has further submitted that applicant had filed Suit No,67 of 1995 and such suit was decreed vide judgment and decree dated 14th December, 2005, copy whereof is available on record along with the counter- affidavit of the decree-holder-bank. Learned counsel has also invited my attention to the order dated 27-1-2009 and submitted that such order supports the applicant. He has further submitted that in the concluding para of the said order it was directed as under:-- "In the above circumstances, I hold that out of the sale proceed with the official assignee, if there is no amount due towards the property tax, the decree in these two execution may be satisfied in the first instance and if any other amount is left with the Official Assignee then he can make a fresh Reference in this regard, so that necessary orders may be passed."
5. ' Learned counsel for the applicant has further argued that in view of above quoted extract from the order the learned Official Assignee has not paid the applicant in terms of decree passed in Suit No,67 of 1995 in favour of Messrs Republic Motors (Pvt.) Limited. He further argued that the learhed Official Assignee has wrongly released the entire amount to the decreeholder-bank. In support of his contentions learned counsel for the applicant has invited my attention to sections 83 and 84 of Transfer of Property Act and has also placed his reliance on the judgment reported as Messrs J.
6. Tyler and Co. v. Messrs United Bank Limited PLD 1982 Kar.639. He further submitted that decree- holder in the present execution application has received more amount than its claim in execution application. He further submitted that under section 84 of the Transfer of Property Act it should not have received future mark-up once the amount was calculated by the Court. In the end he submitted that extra amount received by the decree-holder may be ordered to recover and be paid to the present applicant.
7. ' As against the above contentions Mr.Azizur Rehman, learned counsel for decree-holder-bank has submitted that the claim of present applicant is based upon a decree passed in Suit No,67 of 1995 which was a money decree and not a mortgage decree. He further submitted that order dated 27- 1-2009 was passed in presence of learned counsel for present applicant but no appeal was filed against such order. He further submitted that afore-said order has attained finality and cannot be altered, varied or modified through this application. Learned counsel for the decree-holder further argued that the present application is in the nature of review which is not maintainable on two grounds, firstly, if the application is considered as a review application, it is time barred and, secondly, review of such order is not provided under the Financial Institutions (Recovery of Finances) Ordinance, 2001, hence riot maintainable. Learned counsel has further argued that appeal, review and revision are creation of statute and if such remedy is not provided under the statute the applicant cannot file such application as a matter of routine. He has placed reliance upon the judgment reported as Hussain Baldish v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1. Learned counsel for the decree-holder has further argued that provisions of Order XXXIV rule 13, C.P.C. Have been examined by this Court and after examining the above provisions order dated 27-1-2009 was passed whereby it was held that the claim of decree-holder in the present execution proceedings is to be satisfied by giving priority over other claimants/applicants for they are not covered in any of the categories but they come in the last category i,e, residuary. Learned counsel for decree-holder has argued that copy of memorandum of equitable mortgage filed by applicant neither contains the description of the property nor schedule of property has been shown. He further submitted that said memorandum of equitable mortgage is not registered hence does not have any legal value. Learned counsel for the decree- holder has invited my attention to the Official Assignee Reference No,3 of 2007 dated 3-11-2007 and argued that such reference has dealt with the decree in Suit No,482 of 1998 and Ex. Appin.No,232 of 2000. He further submitted that both the executions were filed by the decree-holder. Learned counsel has further submitted that Official Assignee through his Reference No,3 of 2007 had neither placed the claim of present applicant nor the same was considered by this Court while passing order dated 27-1-2009. The learned counsel has placed reliance in support of above contention on an unreported judgment in Special High Court Appeal. No,89 of 2004 (Industrial Development Bank of Pakistan v. Habib Bank Limited and others) wherein Rule 13 of Order XXXIV, C.P.C. Has been examined by the learned Division Bench of this Court and it was concluded as under:-- "The phrase "whatever is due" as used in second order of priority is not defined. "Whatever" as defined in "Webster New International dictionary of the English Language" Second Edition Page 2907 means: "An emphasized equivalent of what. Relatively; anything or everything that; as take whatever you want; anything so ever which:. In Chambers 20th Century Dictionary, New edition: "whatever" is defined to mean "anything which; no matter what; any or all that; no matter what".
8. Therefore. It could be said phrase "whatever is due" would not only include principal amount "due" but also all profit/interest or mark-up that may be due and payable at the time of sale of mortgage property.
9. ' It, therefore, follows that prior mortgagee will be entitled to receive all the principal sum due on the prior mortgage together with all sum due on account of profit or mark-up etc. Under the Deed of Mortgage in order of priority. Reference is answered accordingly."
10. ' Learned counsel for the decree-holder has further placed reliance on the following judgments:--
(1) Messrs Eagle Star Insurance Co. Limited v. Messrs Usrnan Sons Limited and others PLD 1969 Kar.123.
(2) Messrs Industrial Development Bank of Pakistan v. Messrs Maida. Limited and others 1994 SCM R 2248.
(3) Mst. Shanti v. Karachi Transport Corporation and others 2000 CLC 595.
11. ' I have heard the learned counsel for the parties, examined the record minutely and have gone through the judgments cited by the learned counsel for the parties.
12. ' From the perusal of the decree passed in Suit No,67 of 1995 it appears that such decree was passed in the sum of Rs,20,877,000.00 with cost of the suit but it was not a mortgage decree. There is no denial that Suit No,67 of 1995 was under the provisions of Order XXXIV, C.P.C. But no decree as stated above with regard to the mortgage was passed. An examination of the Official Assignee Reference No,3 of 2007 clearly shows that this reference was in respect of Execution in Suit No,482 of 1998 and Ex.No,232 of 2000. The above-referred reference was taken up by this Court and after hearing the parties vide order dated 27-1-2009 the reference noted above was disposed of. It is pertinent to point out that Advocate for the present applicant was in attendance and was heard by the Court. If the present applicant felt itself aggrieved it should have challenged the order dated 27-1-2009 but no such appeal was filed. In the circumstances, order dated 27-1-2009 has attained finality as argued by the learned counsel for decree-holder.
13. ' From the examination of order dated 27-1-2009 it is clear that while disposing of the above Reference No,3 of 2007 the Court held that out of sale proceed with the Official Assignee, if there is no amount due towards the property tax, the decree in these two executions may be satisfied in the first instance and if any other amount is left with the Official Assignee then he can make a fresh reference in this regard, so that necessary orders may be passed. It was pointed out by the learned counsel for the decree-holder that decrees in the hands of present decree-holder has not been satisfied till date. The contention of learned counsel for applicant that applicant was having the second charge over the mortgage property, hence the applicant is entitled to have share in the amount which was lying with the learned Official Assignee. The contention of learned counsel is misplaced as the present applicant did not have the mortgage decree in its hand. The decree in the hands of the applicant is simply a money decree, hence provisions of Order XXXIV rule 13, C.P.C.
14. Will not apply to the applicant. The contention of learned counsel for the applicant that extra amount has been received by the decree-holder from the learned Official Assignee is not correct for the reasons that under the decrees in hand the D.H. Was entitled to mark-up from the date of institution of the suit till the date of payment, hence the decree-holder-bank was rightly paid by the learned Official Assignee in terms of order dated 27-1-2009.
15. ' The reference to provisions of sections 83 and 84 of Transfer of Property Act by the learned counsel for the applicant is of no consequences in the circumstances of the, case. Similarly the judgment cited by learned counsel in the case of Messrs N. Tyler and CO. Does not advance the case of present applicant as the judgment is distinguishable on facts and not applicable to the circumstances of the case.
16. ' In the case of Messrs Eagle Star Insurance Co. Limited relied by learned counsel for the decree- holder it was held that in the case of memorandum of deposit of title deeds purporting to create in praesenti interest in property in favour of plaintiff should have been registered under the Registration Act, 1908, it was held that if the memorandum of deposit of title deeds are not registered such documents are inadmissible in evidence and further held that such a document does not create any mortgage in favour of plaintiff. In the present case neither description of the property was mentioned nor any schedule of the property was mentioned in the memorandum of equitable mortgage nor any mortgage decree was passed in favour of applicant. The judgment cited by learned counsel for the decree-holder fully supports his case.
17. ' In the case of Messrs Industrial Development Bank of Pakistan provision of Rule 13 of Order XXXIV, C.P.C. Has been dealt with by the honourable Supreme Court of Pakistan wherein it has been held as under:-- "According to this provision the first priority has been given to all expenses incurred on sale or any attempted sale. Then comes the claim of the prior mortgagee and cost incurred by him. Thereafter interest due on account of mortgage in pursuance of which decree was passed and sale was effected and cost of the suit in which such decree was passed, have to be satisfied. The principal amount of such mortgage has fourth priority. If any residue is left after satisfaction of the afore- stated claims it is to be appropriated amongst the persons who prove to be interested in the property sold according to their respective interests. The claimants do not fit in any category of creditors as provided by Order XXXIV, Rule 13, C.P.C. Except in the last one where only residue is to be distributed amongst them. At this stage reference can be made to Rule 323 of Sindh Chief Court Rules (O.S.) which reads as follows:-- "Any encumbrancer, not party to the suit, may at any time before the sale, apply to the Court to be made a party, or for leave to join the sale; and such order shall be made thereon and in protection of his rights and as to costs as to the Judge shall deem fit."
18. ' This rule provides a procedure for an encumbrancer not a party to the suit for the protection of his right and claim. An encumbrancer is entitled to apply to be joined as a party to the sale, who can be made party in the proceedings and protect his claim. At that stage the claimant can press his claim and also claim priority, if any. None of these claimants have taken this step nor joined the proceedings of the sale therefore, this opportunity which was available to them was lost.
19. ' Inter se priority amongst the claimants in appropriation of decretal amount can be claimed either on the basis of law or contract. As presently no claim is based on contract we ignore this aspect of the case. The claimants can succeed in claiming priority over a mortgagee- decree-holder provided such right has been conferred on them in supersession of the right of such mortgagee which he enjoys under law".
20. In view of above the application (C.M.A. No,270 of 2009) merits no consideration which is accordingly dismissed.