' ZIA PERWEZ, J.--- This petition for leave to appeal is directed against the judgment, dated 20-1- 2009 whereby the learned Division Bench of the High Court of Sindh, Karachi in Special High Court Appeal No,272 of 2005, dismissed the appeal against the order of the learned Single Judge in Execution Applications Nos.55 of 1997, 50/85, 20/91, 86/87, 65/85, 45/85 and 93/1993.
2. Dispute involves the disbursement of the amount of sale proceeds of the property bearing ground No,23 (Misc. Area) admeasuring 8327 square meters (98051.26 square yards) or thereabouts situated at Moulvi Tamizuddin Khan Road (hereinafter referred to as the "said property).
3. The Karachi Port Trust, respondent No,8 (KPT) are the owners of the "said property" and had leased the "said property" to the judgment-debtor. Several execution applications arising out of the decrees against the judgment-debtor were consolidated with the consent of the parties vide order, dated 8-2-1987. Before publication the learned Single Judge of the High Court of Sindh on an application moved by the respondent No,8 (KPT) also a decree-holder, vide dated 3-8-1986 ordered that the dues of KPT with respect to the "said property" on account of the rent and dues under the terms of lease of the "said property" may be mentioned in the public notice for auction of the property. After auction of the "said property" Nazir of the High Court submitted his reference, dated 16-8-1992. Auction sale was approved by the learned Single Judge vide his order, dated 17- 9-1992. It was ordered that:--- "The sale is confirmed in the name of nominee of the auction-purchaser. All the outstanding dues regarding the up-to-date rent of KPT may be paid from the amount. The KPT is directed to execute the lease in favour of the nominee of the auction purchaser in constitution of the previous lease.
The balance of the decretal amount may be paid to the decree-holder after completion of the lease and the possession of the building and machinery may be handed over_ to the purchaser."
' Aggrieved by the above order petitioner preferred an appeal as petitioner claimed priority for payment of amount out of the auction proceeds without any deduction towards the payment of the outstanding arrears of rent and dues claimed by KPT on the ground that petitioner was a decree-holder under a registered mortgage and therefore, enjoyed a superior right; which the learned Single Judge of the High Court ordered for disbursement of the auction proceeds to be made with preference to the claim of KPT on account of outstanding arrears of rent and dues with respect to the "said property". Appeal was dismissed vide the impugned judgment.
4. Mr. Aziz-ur-Rehman Khan learned Advocate Supreme Court for the petitioner contented that the Division Bench of the High Court seriously erred in ordering for the payment of outstanding dues of the KPT in disregard to the provisions of Order XXXIV, rule 13, C.P.C. Attracted to the case and not section 73 of C.P.C. In the alternative both the petitioners and KPT being decree-holders and having claims "within the meaning of public dues", stand on the same footing. Their claims are at par and have same priority for payment therefore, the dues of KPT have no priority. That notwithstanding the covenant contained in the lease deed providing for obtaining of a No Objection Certificate from KPT; mere fact of the Registered mortgage deed executed and registered before the Registrar of the area had the effect of making such covenant redundant that the powers of KPT to enforce its lien under section 46 of the KPT Act, 1886 do not apply to the amount realized by auction of the "said property". In support of his contention he has placed reliance on section 65(c) read with 105, 108(j) and section 111(j) of the Transfer of Property Act, section 46 of the KPT Act, 1886 and Mallikarjuna Sastri v. Narasimha Rao ILR 1901 Mad. 412, Oudh Commercial Bank Ltd. v. Secretary of State AIR 1935 Lah. 319(2) and Mst. Nawab Bibi v. Mst. Rafiq Bano PLD 1971 SC 481.
5. Mr. Qamarul Islam Abbas, learned Advocate Supreme Court for the respondent No,8 while opposing the petition placed reliance on the provisions of section 46 of KPT Act (1) with particular reference to the provisions of sections 48, 57, 69, 73, 100, 108(B)(j) of Transfer of Property Act to show that the exercise of right of lien as well as priority of payment of lease charges and dues is recognized and protected under Transfer of Property Act in addition to the powers conferred by section 46 of the KPT Act. That the provisions of Order XXXIV, rule 13 are subject to the provisions of section 57 of the Transfer of Property Act. He further contended that KPT has a preferential right jo the extent of recovery of its dues independent of the decree already passed in favour of KPT for recovery of the amount. He placed reliance on M.P. Krishnaswami Pillai v. Chockalingam Chettiar and others AIR 1943 Mad. 455 and Punjab Small Industries Corporation v. Muslim Commercial Bank Ltd. 2006 CLD 1432.
6. We have heard the learned counsel and perused the record. In order to examine the first contention as to the scope of the lien of KPT in exercise of powers conferred under section 46 of the Karachi Port Trust Act, 1886. We may reproduce the section as follows:--- "Board's lien for tolls and charges.--- For the amount of all tolls, dues, rates and charges leviable under this Act in respect of any goods; the Board shall have a lien on such goods, and shall be entitled to seize and detain the same until such tolls, dues, rates and charges are fully paid (and for the amount of rent lawfully due on buildings, plinth, stackings areas and other premises, the property of the Board, and not paid after bills therefor have been duly preferred, the Board shall have a lien on all goods, therein or thereon, and shall be entitled to seize and detain the same).
Tolls..
The lien ...........................................................................
7. A bare reading of section 46 of the Karachi Port Trust Act, 1886 above shows that the said section empowers the Board to exercise its lien with respect to the tolls and charges falling under two categories, the first being that "the Board enjoys a lien and is entitled to seize and detain any goods subject to tolls, dues, rates and charges leviable under the act till such time as the same are fully paid. The second part of section 46 reads:--- "and for the amount of rent lawfully due on buildings, plinths, stacking areas and other premises, the property of the Board, and not paid after bills therefor, have been duly preferred; the Board shall have a lien on all goods, therein or thereon, and shall be entitled to seize and detain the same."
' The above part of section 46 of the KPT Act recognizes a lien on all goods for the recovery of the rent due to KPT with respect to the specified property of the Board. The manner of exercise of such lien is also provided in the same section that is by way of seizure and detention of the goods.
8. Admittedly the dues of KPT pertaining to the arrears are with respect to the "said property" under lease granted by the KPT. The property was auctioned along with machinery and goods lying therein, therefore, KPT is entitled to exercise the power conferred under section 46 above to the extent of value of such machinery and goods.
9. As to the question of obtaining of a no objection certificate being a precondition for transfer the same being a contractual condition of the lease of the "said property", is binding on the subsequent transferees as well as the mortgage being a covenant of lease. Mere registration of a mortgage in favour of the petitioner cannot override such express covenant with the express permission of KPT, such covenants of lease are protected under the provisions of section 108 of the Transfer of Property Act and cannot, in any manner be varied or modified by mere registration of mortgage deed between the subsequent transferees.
' Nawab Bibi's case (supra) did not involve any variation or violation of a covenant of lease but involved the question of NOC after payment of tax which is not denied if the amount is paid even subsequently but is, therefore, distinguishable. Therefore, the rights of KPT are not effected by mere Registration of the mortgage deed without obtaining a NOC from KPT who is the owner of the "said property".
10. With regard to the ground as to priority of payment to the petitioner holding a registered mortgage on the strength of the provisions of Order XXXIV, C.P.C. Having an overriding effect as against the dues payable to KPT with respect to the "said property" auctioned in execution of a decree, it may be observed that the payment of outstanding dues and charges are not the subject-matter of Order XXXIV, C.P.C. Order XXXIV, rule 13(2) specifically provides as follows:- "Nothing in this rule or in rule 12 shall be deemed to effect the powers conferred by section 57 of the Transfer of Property Act, 1882."
' The above rule in clear and unambiguous terms provides for provisions of the aforesaid order to be subject to section 57 of the Transfer of Property Act, which is reproduced as under:--- "Provision by Court for incumbrance and sale freed therefrom.--- (a) where immovable property subject to any incumbrance, whether immediately payable or not, .Is sold by the Court or in execution of a decree, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court.---
(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property of such amount as, when invested in securities of the (Federal Government), the Court considers will be subject, by means of the interest thereof to keep down or otherwise provide for that charge, and
(2) in any other case of a capital sum charged on the property of the amount sufficient to meet the incumbrance and any interest due thereon.
' But in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investment, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reasons (which it shall record) thinks fit to require a large additional amount.
(b) Thereupon the Court may, if it thinks fit, and after notice to the incumbrancer, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.
(c) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.
(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.
(e) In this section "Court" means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court which the (Provincial Government) may, from time to time, by notification in the official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.
11. KPT is decree-holder with respect to the dues payable against the said property and is entitled to recovery of the amount. The dues are further covered under subsections (1) and (2) of the above section under the law. The mortgagee shall only be entitled to claim payment due on any surplus sale proceeds remaining after payment of all charges and deductions as clearly envisaged under the provisions of section 73(1) as follows : "Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgage, the mortgagee shall be entitled to claim payment of the mortgage money, in whole or in part, out of any surplus of the sale proceeds remaining after payment of the arrears and of all charges and deduction directed by law."
' The contentions of Mr. Aziz-ur-Rehman are not only opposed to the specific provisions of law on the subject but, if accepted, would amount to legalizing fraud. Owners of properties subject to payment of significant amount of dues, for the recovery of which, at times, such properties are even put to auction; would defeat the entire recovery process by mortgaging the property, getting it auctioned and pocketing the sale proceeds in the guise of a mortgage foreclosure sale.
Protection against such an eventuality has therefore, been provided by the Legislature under section 57 of the Transfer of Property Act.
12. In addition to the above the claim of KPT is also protected under Chapter IV of the Transfer of Property Act extending from sections 58 to 104 which deals with the subject of mortgage of property and covers the rights and liabilities of the parties. The dues of KPT attract the provisions of section 69(4) under the aforesaid Chapter-IV, which reads as follows:--- "The money which is received by the mortgagee, arising from the sale, after discharge of prior incumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior incumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property; or authorised to give receipts for the proceeds of the sale thereof."
13. The legislature has expressly protected the recovery of dues and charges payable with respect to a property subject to mortgage. In the absence of any other condition to the contrary, the provisions of Order XXXIV, rule 13 as well as section 69(4) of the Transfer of Property Act. The dues of KPT are covered under provisions of section 57 as the dues and charges pertaining to the lease of the "said property" and are to be paid out of the auction proceeds before any disbursement can be made to the petitioners. It is well-settled rule of construction of legal instruments that when a special provision has been made on a subject and there is also a general provisions susceptible of covering the same field and the matter is covered by both the provisions, the presumption would be that the general provisions is not intended to interfere with the operation of the special provision and the case shall have to be dealt with under the latter provision as held in the case of Golden Oraphies (Pvt.) Ltd. And 12 others v. Director of Vigilance, Central Excise, Customs and Sales Tax and others 1993 SCM R 1635.
14. Yet another important aspect of this case is that the lease of the "said property" was due to expire. In the absence of a valid lease the question of auction cannot arise as no valid title to the "said property" remained to be transferred. The KPT renewed the lease as directed by the Single Judge of the High Court vide order, dated 9-8-2005, so as to confer and validate the title. KPT cannot, under such circumstances be deprived of its dues while extending the lease to make a valid transfer of leasehold rights possible. The case-law cited by the learned counsel for the petitioner does not pertain to the effect of section 57 of the Transfer of Property Act with respect to the provisions of Order XXXIV of C.P.C. And the provisions of the Transfer of Property Act examined above are therefore, distinguishable.
15. For the foregoing reasons, this petition for leave to appeal being devoid of any merits is dismissed.