' ABDUL RASOOL MEMON, J.---This second appeal is directed against the judgment dated 11-8-2009 passed by Vth Additional District Judge, Karachi East in Civil Appeal No,10 of 2008 whereby the judgment and decree dated 24-12-2007 and 8-1-2008 respectively passed by 1st Senior Civil Judge Karachi, East in Suit No,1439 of 2005 dismissing the suit of the appellant/plaintiff, were maintained and appeal was dismissed.
2. In brief, facts of the case as pleaded in the plaint before the trial Court are that the appellant is a statutory body constituted under Karachi Port Trust, Act, 1886 and carrying business under the regulations as provided under the aforesaid Act. It is stated that one Mahboob was an employee of the appellant as a security guard in watch and ward department P.No,23745-7, who was husband of the respondent No,1 and father of the respondents Nos.2 to 4, expired on 30-5-2000 during the tenure of his service. During his life time said Mahboob had obtained house building advance amounting to Rs,180,000 from the appellant and mortgaged his Plot No,96/IV admeasuring 120 sq.
Yds. Situated in Gulshan-e-Shahbaz Landhi, Karachi vide registered mortgage deed vide Registration No,2453, Book No,1 registered with Sub-Registrar T.Division No,XIII, Karachi dated 17-9- 1997. It is further pleaded that during his life time said Mahboob did not repay/return advance taken by him which came to Rs,2,17,848 now payable by the respondents Nos.1 to 4 being his legal heirs. The appellant issued legal notice dated 27-5-2005 to the respondents through courier service but the notice returned unserved and consequently the appellant filed suit for recovery of the aforesaid amount along with profit at the rate of rupees 13% per annum.
3. Respondent No,1 was served with notice of the suit, she appeared on one date of hearing before the trial Court and sought time, but thereafter she did not make her appearance and accordingly she was ordered to be proceeded ex parte. The learned Senior Civil Judge vide his abovementioned order dismissed the suit observing that as per terms and conditions of the mortgage deed mentioned above it shall be lawful for the mortgagee without intervention of the Court to sell or concur with any other person in selling the mortgaged property or any part thereof either by public auction or by private contract, if the mortgagor failed to repay the amount or any part thereof for any three calendar months; the appellant is at liberty to execute the condition of the mortgage deed as per terms and conditions of the said agreement and no case for recovery of the amount is made out and the suit was dismissed accordingly 'The appellate Court also dismissed the appeal of the appellant and concurred, with the view of the trial Court and also observed that the suit was hopelessly time barred.
4. Before this Court notices were served on respondent No,1 being mother of the minors but she did not turn hence service against the respondents was held good and the arguments of the counsel for the appellant have been heard.
5. Learned counsel for the appellant has contended that the trial Court without applying its judicial mind has failed to consider that the suit is based on mortgaged property and advance secured by the mortgagee by deposit of title deeds are governed under Order XXXIV, C.P.C. And without adopting proper procedure as provided under Order XXXIV, C.P.C., the appellant could not recover the amount or dispose of the mortgaged property of the deceased. According to the learned counsel the averments of the plaint has gone unrebutted and unchallenged therefore there was no option available with both the Courts, except to accept the contention of the appellant as true and the trial Court should have framed a preliminary decree as provided under Order XXXIV, Rule 4, C.P.C. He has urged that the decision taken by the learned two Courts below is contrary to Order XXXIV, C.P.C. Hence this Court by exercising powers under section 100, C.P.C. May set aside the same. He further added that the observations of the trial Court that the suit is barred by the law of limitation is contrary to Article 132 of the Limitation Act 1908. He prays for setting aside the impugned judgments and decrees. In support of his contentions he has placed reliance on the case of Messrs AL-BADAR TIMER and another v. UNITED BANK OF PAKISTAN LTD. And others (1996 CLC 73).
6. As per contents of plaint said Mahboob during his life time obtained house bungling advance from the appellant and had mortgaged his plot mentioned above on 17-9-1997. In view of the above circumstances the appellate Court as well as the trial Court have failed to appreciate the contention of the learned counsel for the appellant that in the suits relating to mortgage of immovable property O.XXXIV, C.P.C. Would come into operation and under the said provisions of law the recovery of loan or foreclosure would be made. The observations of the appellate Court that the suit is hopelessly time barred without quoting any provision of law is not sustainable. Per Article 132 of the Limitation Act, 1908 to enforce payment of money charged upon immovable property by securing advance by mortgage and deposit of title deeds, the limitation is twelve years from the date when the money sued becomes due. Even if the date of mortgage is to be taken into consideration i,e, 17-9-1997 then the suit which has been filed in the year 2005 becomes within time. It is relevant to note that the respondents Nos.2 to 4 are minors and as per contents of the plaint they have been sued through their mother and natural guardian Mst. Naheed the respondent Nos.
1. In this regard provisions of Order XXXII Rule 3, C.P.C. Would be applicable which reads as under:-- "3. GUARDIAN FOR THE SUIT TO BE APPOINTED BY. COURT FOR MINOR DEFENDANT.---(1) Where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) . Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father Or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.
7. It is very strange that in the suit before the trial Court no such application supported by an affidavit is filed by the appellant/plaintiff for appointment of the guardian ad litem of minor respondents Nos.2 to 4.
Not only this, but it is also surprising that in the order of the trial Court it is mentioned that the mother of the minor respondents/defendants came in Court and produced her NIC and thereafter she did not turn up. Thereafter, all the defendants/respondents were ordered ex parte without appointment of guardian ad litem of respondents Nos.2 to 4, which is in contravention of Order XXXII Rule 3, C.P.C. In, this respect I am fortified by the case of YAR MOHAMMAD V. Mst. AMANAT and others (1988 CLC 1355) wherein passing of a decree in the absence of appointment of guardian ad litem of the minor defendants were set aside holding that the Court has no jurisdiction to proceed against minors and B pass decree against them without formal appointment of guardian ad litem as required under Order XXXII, Rule 3, C.P.C. And such decree is held nullity in the eye of law.
8. It is not clear whether the proper service was held good against the minor respondents or not.
The ages of minor respondents have also not been mentioned by the appellant/plaintiff in the suit and the plaintiff was duty bound and under obligation to have given the latest and accurate address of the respondents. No substituted service appears to have been made in the form of publication against the minor respondents.
9. In view of my above discussion, I am of the opinion that both the Courts below have not appreciated that the suit relating to mortgage of immovable properties is governed by Order XXXIV, Rule 1, C.P.C. Under which provision of law the recovery of loan or foreclosure would be made hence thereby their decision is contrary to law and is liable to be set-aside. I hereby allow this appeal and set aside the impugned judgments and decrees of the two Courts below and remand the case to the trial Court with directions to proceed with the matter afresh after proper service on respondents/defendants and complying with Order XXXII, Rule 3 and Order XXXIV, C.P.C.