' SYED SAEED-UD-DIN NASIR, J.---Through this application under Order I, Rule 10 read with section 151, C.P.C., Intervener Aamir Ahmed son of Saeed Ahmed seeks to be impleaded as necessary party.
Reason assigned by the aforesaid proposed intervener for being impleaded as necessary party to the present Suit is that the said proposed intervener is bidder of the said property in Execution No, 320/2009 in Suit No, 305 of 2008 before the learned Banking Court No, IV at Karachi. Counsel for the proposed intervener further submits that proclamation for the sale of the property bearing House No, B-9, Block II, Gulshan-e-Iqbal, KDA Scheme No,4 Karachi was published in Daily Dawn and Daily Jang, both dated 28-7-2012 and thereafter the proposed intervener participated in auction proceeding on 3-9-2012 and submitted offer through application amount of Rs,1,20,00,000 only and deposited Rs,500,000 only, however, proposed intervener with mala fide intention with the plaintiff deliberately did not join the intervener bidder, therefore present proposed intervener may be allowed to join as necessary party to the suit.
' In response to this application, the plaintiff filed counter-affidavit wherein the plaintiff has vehemently opposed the averments made by the proposed intervener in his application to be joined as party to the present suit. Counsel for the plaintiff has submitted that the intervener has no locus standi to file the instant application and there is no prayer clause in the plaint seeking any relief against the said intervener. Learned counsel for the plaintiff further submits that the above intervener has only given the bid in respect of all the subject suit property in Banking Court No, IV which has not been confirmed by the learned Banking Court and right of the bidder has not established as auction purchased of the aforesaid property. The bidder filed application before learned Banking Court for extension of time, to deposit the 20% bid amount within 20 days, but the aforesaid bidder has failed to deposit the aforesaid amount within requisite time hence aforesaid bidder has filed the instant application with mala fide intention in the present suit. In order to substantiate his argument learned counsel for the plaintiff has relied upon Order XXI, Rules 84(1), 85 and 86 C.P.C. Which is produced as under:- "84. Deposit by purchaser and re-sale on default.---(1) On every sale of immovable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent., on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be resold.
85. Time for payment in full of purchase-money.---The full amount of purchase-money payable shall be paid by the purchaser into Court before the court closes on the fifteenth day from the sale of the property: ' Provided that, in, calculating the amount to be so paid into Court, the purchaser shall have the advantage of any setoff to which he may be entitled under Rule 72.
86. Procedure in default of payment.---In default of payment within the period mentioned in the last preceding rule the deposit may, if the , Court thinks fit after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold."
By perusal of the record it transpire that it is an admitted position that the proposed intervener has failed to deposit 25% bid money with the Banking Court concerned and could not assume status of the auction purchaser. It is also an admitted fact that against proposed intervener no relief is claimed in the suit.
' In view of the submission made by the plaintiff as well as argument extended at the bar by the learned counsel for the plaintiff this application has no merits and it is not necessary to join the interventer as necessary party. Hence this application is dismissed with no order as to costs.
2. Through this application the plaintiff seeks a restraining order against the defendant No,3/MCB Bank from alienating, transferring and auctioning the suit property bearing House No, B-9, Block II Gulshan-elqbal, KDA Scheme No,4 Karachi, measuring' 400 Sq. Yds, till the disposal of the instant suit. The reasons mentioned in the supporting affidavit are more or less the same as in the main body of the plaint. In response to this application the defendant No,3 MCB Bank has filed counter- affidavit and has denied each and every averments made in the application of plaintiff. Learned counsel for defendant No,3 has stated that the plaintiff with the connivance of defendant No,1 has filed the . Instant application with mala fide intention and ulterior motive just to deprive the defendant No,3 from recovery of his outstanding amount from the defendant No,1 . The defendant No,3 is entitled to recover the amount under judgment dated 18-3-2009 and decree dated 28-5- 2009 respectively passed by the learned Banking Court No, IV in recovery Suit No, 305/008 in his favour. The learned counsel for defendant No,3 further submits that prior to filing of the instant application as well as the present suit the plaintiff had already filed three applications under section 12(2), C.P.C. Read with section 12 Financial Institutions (Recovery of Finances) Ordinance, 2001 under Order XXI Rules 58(1)(2), 60, 62, C.P.C. Read with section 151 C.P.C. Read with section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance 2001 and under Order XXI Rule 29 C.P.C. Read with section 151 C.P.C. Respectively, before learned Banking Court No, IV, Karachi in Recovery Suit 305/2008, wherein the said plaintiff had pleaded the same case as pleaded in the instant application. Learned counsel for the plaintiff submits that all the aforesaid applications were dismissed by the learned Banking Court on merits. Hence the plaintiff raised the same point, which has already been decided by the Court of competent jurisdiction. Learned counsel for defendant No,3 states that the plaintiff did not prefer another appeal before another forum as such the aforesaid order attained finality. Learned counsel for defendant No,3 further submits that it is not possible that without receiving the sale consideration in respect of the aforesaid property in question. The plaintiff signed and executed the sale deed in favour of the defendant No, I. Learned counsel further points out that office of the Sub-Registrar while accepting the title documents is bound to confirm from the seller as to whether he has received the total consideration from the buyer or not and if the sale consideration has not been received the sale consideration cannot be registered. The suit according to the learned counsel for the defendant No,3 is collusive.
' It is an admitted position that writ of attachment has been issued in respect of the aforesaid property by the learned Banking Court No, IV in the execution proceedings, therefore, it would not be appropriate to stop the Banking Court from executing the decree in Execution Application 320/2009. Hence, for the reasons stated above this application is dismissed with no order as to costs.