AIMAL MIAN, J.-These two connected High Court Appeals are directed against the order passed on 22-3-1980, by Mr. Justice Zaffar Hussain Mirza, J. (as he then was) in Suit No. 500/70 and, therefore, we intend to dispose by this common judgment.
2. The brief facts leading to the filing of the above appeals are that respondent No. 2 i.e. S. M. Anwar Sethi, filed the above suit under Order XXXIV, C. P. C. On mortgage for the recovery of Rs. 71,750 against Sheikh Muhammad Hussain in 1970. It seems that the above suit was decreed by consent of the parties for the amount claimed in the suit with interest of 6% per annum from the date of the suit till payment and costs. Sheikh Muhammad Hussain was granted six months time to pay the decretal amount. However, he paid a sum of Rs. 50,000 i.e. Rs. 30,000 on 18-8-1971 and Rs.20,000 on 14-10-1971 but did not pay the balance amount. Consequently, upon an application filed by S. M.
Anwar Sethi a final decree was passed on 9-12-1974 directing that the mortgaged property be sold and the sale proceeds be applied to the satisfaction of the decree. It further seems that before the property could be put to sell in furtherance of the aforesaid final decree S. M. Anwar Sethi purported to sell the mortgaged property in favour of Mst. Zubaida Bano, the appellant in H. C. A. No. 23/80, through a registered sale deed dated 25-4-1979 for a sum of Rs. 1,65,000. It may be pertinent to observe that the property in question comprises of a plot of land, measuring 700 sq. Yds with building thereon situated on Frere Road, Karachi. It further seems that Sheikh Muhammad Hussain filed an application (Miscellaneous Appeal No. 2452/79) under Order XXXIV, rule 5, C. P. C. Praying therein for an order that the plaintiff be directed to deliver up the documents of the title of the mortgaged property upon receipt of the balance amount. He also filed another application (Civil Miscellaneous Appeal No. 2329/79) under Order XXI, rule 1, C. P. C. For permission to deposit the balance decretal amount including interest, namely, Rs. 31,000, whereas S. M. Anwar Sethi filed an application (Civil Miscellaneous Appeal No. 2955/ 79) under Order XXI, rule 2, C. P. C. For recording satisfaction of the decree. The above three applications were taken up together and were disposed of by the learned Single Judge by the aforesaid common order. Mst. Zubaida Bano and S. M. Anwar Sethi being aggrieved by the above order have filed separate High Court Appeals, namely, H. C. A.
23 of 1980 and H. C. A. 29/80 respectively.
3. (a) In support of the two appeals Messrs Khalilur Rehman and K. A. Wahab have made the following submissions
(i) That the provisions of Order XXXIV, rule 5, C. P. C. Were not applicable to the instant case as the sale was not through the Court, and, therefore, there was no question of the confirmation of the sale.
(ii) That under section 69 of the Transfer of Property Act S. M. Anwar Sethi was entitled to sell the mortgaged property under the power of attorney.
(b) On the other hand Mr. Nooruddin Ramzan, learned counsel for Sheikh Muhammad Hussain has made the following submissions.
(i) The Order XXXIV, rule 5, C. P. C. Empowers the Court to pass an order directing the decree-holder to return the documents of title upon the receipt of the decretal amount at any time before the sale takes place through the Court.
(ii) That in view of section 96 read with sections 58(b) and 67 of the Transfer of Property Act S. M.
Anwar Sethi was not entitled to sell the property without the intervention of the Court.
(iii) That section 69 of the Transfer of Property Act is not applicable to the instant case as admittedly no express power was provided for in the mortgaged deed as it was merely an equitable mortgage.
4. Reverting to the first contention of the learned counsel for the appellants that the provisions of Order XX'XIV, rule 5, C. P. C. Were not attracted to the instant case as there was no sale of the property through the Court, it may be pertinent to refer the above provision, which reads. As follows;-- "Order XXXIV, rule S. Final decree in suit` for sale.-Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order,
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary,
(b) ordering him to transfer the mortgaged property as directed in the said decree and also, if necessary,
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. Of the amount of the purchase money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase money paid into Court by him, together with a sum equal to five per cent, thereof.
"(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4."
It may be noticed that under the above provision a defendant may approach the Court either (a) on or before the day fixed by the Court or (b) at any time before the confirmation of a sale made in pursuance of a final decree. In our view, the phrase, "at any time" is of wide import As to include even a case in which no sale in fact has taken place in further an of a final decree. The emphasis is that a defendant if he wishes to apply to the Court should do so before the Court confirms the sale of the mortgaged property. If the Court has the power to pass an order after the sale before its confirmation, in our view, the Court has also the power to pass an order in a case, in which no sale has taken place.
5. (a) With reference to the second contention of Mr. Khalilur Rehman, Advocate that section 69 of the Transfer of Property Act S. M. Anwar Sethi was entitled to sell the mortgaged property without intervention of the Court, it may be advantageous to refer to the above section, which reads as follows;-- "Section 69.-Power of sale when valid.-(1) Notwithstanding anything contained in the Trustees and Mortgages Powers Act, 1866, a mortgagee, or any person acting on his behalf, shall subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage-money without the intervention of the Court, in the following cases and in no others, namely.
(a) Where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the Provincial Government in the official Gazette ;
(b) where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and the mortgagee is the Government or a Scheduled Bank as defined in section 2 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956) ;
(c) where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the town of Karachi or in any other town or area which the Provincial Government may, by notification in the official Gazette, specify in this behalf.
(2) A power under subsection (1) shall not be exercised unless and until.
(a) notice in writing requiring payment of the principal money has been served on the mortgagor or on one of several mortgagors and default has been made in payment of the principal money, or of part thereof, for three months after such service ; or
(b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming dues. Provided that the power of a Scheduled Bank under clause (b) of subsection (1) shall further be subject to such conditions as may be prescribed in this behalf by notification in the official Gazette by Central Government in consultation with the State Bank of Pakistan.
(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.
(4) 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 incumbrances, 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.
(5) Nothing in this section or in section 69-A applies to powers conferred before the first day of July, 1882."
(b) It may be noticed that under the above-quoted section there are three categories of cases in which a mortgagee is entitled to sell a mortgaged property without the intervention of the Court, namely, firstly, when the mortgage is an English Mortgage and neither the mortgagor nor the mortgagee is Hindu, Muhammadan or Buddhist or a member of any other race, sect or tribe or class notified by the Provincial Government in the official Gazette, secondly, where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage- deed and the mortgagee is the Government or a Scheduled Bank as defined in section 2 of the State Bank of Pakistan Act, 1976, and, thirdly, where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage deed and the mortgaged property or any part thereof on the date of execution of the mortgage deed was situated within the town of Karachi or any other town specified by the Provincial Government in the official Gazette.
(c) It is an admitted position that no mortgage deed was executed in the instant case as it was merely an equitable mortgage. In this view of the matter, it is clear that S. M. Anwar Sethi had no power under the mortgage-I' deed to sell the mortgaged property without the intervention of the Court as( to press -into service above section 69 of the Transfer of Property Act'. Furthermore, under subsection (2) of section 69 the power cannot be exercised without serving a notice on the mortgagor and without waiting for three months after such service of notice. Additionally, this power cannot be exercised unless the amount of interest due was more than Rs. 500.
6. Reverting to the contention of Mr. Nooruddin Ramzan, learned counsel for the respondent that in view of the provisions of section 96 read with sections 58(b) and 67 of the Transfer of Property Act, S. M. Anwar Sethi was not entitled to sell the property without the intervention of the Court, it may be pertinent to observe that section 96 provides that the provisions contained in the Transfer of Property Act will also apply to simple mortgage so far as they may be applicable. Whereas, section 58(b) of the Act entitles the mortgagee to cause the sale of the mortgaged property in case of simple mortgage when the mortgagor fails to pay the mortgage money. Furthermore, section 67 of the Act gives the right to a mortgagee to obtain a decree for foreclosure or for sale of the property before any decree for redemption is passed. In view of the above provisions, it is evident that S. M.
Anwar Sethi being the mortgagee could not have sold the mortgaged property without the intervention of the Court in the absence of any express power in, a mortgage deed.
9. (a) It was also contended by Mr. Khalilur Rehman, the learned counsel for the appellant in High Court Appeal No. 23/80 that in fact the sale was under a power of attorney for some other loan transaction and the remedy if any for Sheikh Muhammad Hussain was by way of a suit for damages. In support of the above contention he has referred to the case of N. Rama Krishna Mudali v. Official Assignee of Madras (AIR 1922 Mad. 390and the case of Ahmed Khan v.
Settlement Commissioner (1975 SCMR 64). On the other hand Mr. Nooruddin Ramzan has referred to the case of Kishan Lai v. Ganga Ram (1 L R 13 All. 28and the case of M. A. Hain Yeik v. K. A. R. K.
Firm (AIR 1939 Rang. 321
(b) Reverting to AIR 1922 Mad. 390, it may be observed that in the above case the mortgagee sold the mortgaged property in exercise of an express power contained in the mortgage deed. It was urged that the above sale was defective inasmuch as the mortgagee purported to exercise the above right not in respect of the original loan under the mortgage deed but also in respect of the subsequent indebtedness of Rs. 800 created by the loan and secured by an equitable mortgage. It was held, by the Madras High Court that the remedy if any, against the wrongful exercise of the power of sale, is to file a suit for the recovery of damages. In our view the above case has no application inasmuch as admittedly there was a mortgage deed in the aforesaid case containing an express power empowering the mortgagee to dispose of the property without the intervention of the Court, which is lacking in the instant case. _
(c) With reference to 1975 SCMR 64, it will suffice to observe, in the above case it was observed by the Supreme Court while dismissing the petition for leave to appeal, that the deed of relinquishment in respect of a property executed by an attorney does not become invalid for the reason that the power of attorney was revoked after the execution of relinquishment deed in the absence of any allegation to the effect that the power of attorney being forged. In our view, the above case has also no application to the instant case inasmuch as that S. M. Anwar Sethi could not have sold the mortgaged property without intervention of the Court.
(d) Referring to the case 13 1 L R All. 28, it may be observed that a Division Benuh of the Allahabad High Court while interpreting section 58(b) of the Transfer of Property Act held that the word `cause' used in the above provision means that this power can be exercised by obtaining an order from the Court and not by the mortgagee without the intervention of the Court.
(e) With reference to AIR 1939 Rang. 321, it will suffice to observe that a Full Bench of the Rangoon High Court held that the right of mortgagee to bring property to sale must be resorted to in execution proceedings, but the mortgagee has no right to sell the property without the intervention of the Court in view of section 58(b) of the Transfer of Property Act.
(f) The above two cases cited by Mr. Nooruddin Ramzan on all force are applicable to the instant case as admittedly the subject-matter of the suit in question was an equitable mortgage.
10. We may also advert to another aspect of the instant case, which has been noticed by the learned Single Judge in his order under appeal, namely, that the mortgaged property was attached in two suits namely Suit No.501/70, which was filed by S. M. Anwar Sethi against Sheikh Muhammad Hussain on a promissory note under Order XXXVII, and also in Suit No. 22/71 filed by Messrs Standard Bank Limited against Sheikh Muhammad Hussain. It has been held by the learned Single Judge that in view of the fact that the property was attached in the above two suits S. M.
Anwar Sethi could not have sold the property in question without the intervention of the Court.
However, it was urged by Mr. Khalilur Rehman that since the attachment in Suit No. 501/70 was for the benefit of S. M. Anwar Sethi, the sale effected by him under the power of attorney was not void.
In support of the above contention Mr. Khalilur Rehman has referred to the case of Thondan Anna Malai Mudah v. Tiruttani Ramasami Mudali and others AIR 1941 Mad. 161In the above case one of the Judges constituting the Full Bench, Patan Jali Sastri, J., observed as an obiter the attachment, void against a person for all purposes, but only against a claim enforceable under the attachment and that the decree-holder's right to bring the attached property to sell under his attachment remained unaffected by any alienation made by the judgment-debtor subsequent to such attachment. In our view the above case has no application to the instant case for the simple reason that we have held that S. M. Anwar Sethi was not entitled to sell the mortgaged property without the intervention of the Court. Furthermore, the above observation was not a finding in the case, but merely an obiter dictum by one of the Judges constituting the Full Bench. In our view, the fact that the property in question was attached in Suit 502/70 filed by S. M. Anwar Sethi and in Suit No. 22/71 filed by Messrs Standard Bank Limited incapacitated S. M. Anwar Sethi in law from exercising the alleged power of sale in respect of the mortgaged property under the alleged power of attorney.
11. We may observe that the order under appeal is pre-eminently a just order, inasmuch as the judgment-debtor Sheikh Muhammad Hussain had paid Rs. 50,000 by 14-10-1971 against the decretal amount of Rs. 71,750 leaving a balance of about Rs. 21,000, whereas Anwar purported to sell the mortgaged property on 24-5-1979 after about 8 years from the date of the preliminary decree. The balance amount including upto date interest was paid by Sheikh Muhammad Hussain on 25-5-1979. In this background of the facts, it would not have been just and proper to decline Sheikh Muhammad Hussain's the aforesaid two applications by the learned Single Judge.
For the foregoing reasons,- we do not see any substance in the aforesaid two appeals which are dismissed with no order as to costs.