' SYED MAHMOOD ALAM RIZVI, J. ---By this application the petitioner has sought review of order dated 13-11-2008 and has prayed that the petition may be decided after hearing the parties.
2. Precisely, the facts of the case are that the brother of petitioner obtained loan facility from respondent No, 2 for Rs,50,00,000 for advancement of his business. The loan was drawn on 7-11- 1989. Later on account was closed on 13-12-1990, when the outstanding balance reached to Rs,73,88,032.22. The deceased, brother of the petitioner had not liquidated the liability despite service of notice, therefore, the respondent No,2 filed a suit for recovery of Rs,1,32,55,039,89 against Messrs Gulistan-e-Akbar Housing Enterprises and 10 otheRs, All the respondents duly appeared in the Banking Court and filed their written statements except defendants Nos. 10 and 11 and they were declared ex parte. The defendants/J.Ds did not deny availing of the loan but alleged miscalculation of mark-up and other charges, resultantly, the suit was decreed on 7-7-1993 in the sum of Rs,59,87,882.50 along with markup charges for cushion period of 210 days and further markup charge for the decretal amount from the date of decrees until full satisfaction of the decree and proportionate costs of the suit from the defendants/J.Ds. Nos.2 to 9, as the partners of the defendant/J.D No,1 and also from the defendant No,10, the guarantor, jointly and severally and also against the defendant No,11 to the extent of his property mortgaged with the plaintiff/D.H.
3. The final decree was prepared on 15-7-1993. Therefore, the plaintiff/respondent No,1 had filed an execution application before the learned executing court bearing No, 170 of 1996, for the sum of Rs,90,97,289.50, beside further mark-up from 1-10-1995, prayed to attach and sell the properties including bungalow No, 232, Unit No,2, Block "C", Latifabad, Hyderabad. Thereafter, the executing court proceeded to sell the property through auction, which was duly published in newspapers and the date of open public auction was finally fixed on 3-9-2007, however, prior to it one Abdul Qadir filed an application under section 151, C.P.C. For suspending the auction proceedings, but the same application was dismissed on 3-9-2007 and on the same day auction was held and the highest bidder deposited 25% of the bid amount and subsequently deposited 75% of the balance amount.
Thereafter, notices for settlement of terms of sale under Order XXI, Rule 66, C.P.C. Were also issued to all the J.Ds and the legal heirs of the J.Ds in accordance with law.
' That after confirmation of sale, the mother of the petitioner as well as the mother of J.D No,1 who inherited the mortgaged property after the death of his son filed an application under Order XXI, Rule 89, read with section 151, C.P.C., or setting aside the auction/sale proceedings on the ground that her husband also expired on 18-8-2007 thereafter, she inherited the share of her husband as well and become the owner before the auction proceedings held by the Court. She being the occupant and the owner of the above mentioned Bungalow was prepared to deposit the sale consideration of Rs, 1,78,00000 in the court and also ready to pay a sum equivalent to 5% of the above purchase money to the purchaser.
5. However as she had failed to deposit the sale price as well as a sum equivalent to 5% of the purchase money, therefore, the application was dismissed on 9-1-2008 by the Banking Court, which order has been impugned through appeal bearing No, 3 of 2008 pending before this Court.
6. The petitioner being the real brother of the deceased Muhammad Akbar as well as son of Mst.
Nabina Begum filed this petition on 20-10-2007 and has prayed as under:--
(i) To order to exclude Bungalow No,. 232/A, Unit No, 2, Latifabad Hyderabad till the finalization of loan by auction of other property.
(ii) To order to write off Interest which is quite more in comparison to the loan as paid to the deceased Haji Muhammad Akbar Samo.
(iii) To order to authorize the petitioner for recovery of outstanding from defaulters of Gulistan-e- Akbar Enterprises Qasimabad, Hyderabad.
(iv) To grant any other relief as deems fit and proper according to circumstances of the matter.
7. It appears from the record that after filing of the above petition, petitioner never turned up and ultimately after issuance of notices, the petitioner put his appearance on 22-8-2008. The notices were issued and the respondents put their appearance and filed counter affidavits. Ultimately on 13-11-2008 this Court observed that the property was mortgaged and thereafter, the mother same owner who filed objections before the Banking Court, the same was dismissed and said order had been impugned before this Court being Ist Appeal No, 3 of 2008 and the 2nd appeal was also dismissed for non-prosecution on 5-11-2008. The Court further held that for restoration of the said appeal the mother may file an application but this petition was not maintainable and further held that the petitioner not being the owner also had no locus standi the petition therefore was dismissed.
8. However, the Ist Appeal No,3 of 2008 had been restored on 16-12-2008.
9. Notices of this review application were issued to respondents and on joint request this petition was tagged with the above mentioned 1st Appeal and both the cases were heard together.
10. After discussing all the facts and circumstances a separate order has been passed whereby the appeal of the mother of the Petitioner is being dismissed. The petitioner has failed to point out any illegality in the order under review. Therefore, this application has no merits, hence dismissed with the listed applications.