KAUSAR SULTANA HUSSAIN, J. Through instant First Appeal No. 51 of 2018, the appellants/interveners have assailed the order dated 09.04.2018 (hereinafter w be referred as impugned order), passed by the learned Banking Court No. 1, at Karachi in Execution Application bearing No. 79 of 1995 of Suit No. 278 of 1983, whereby the C.M.As. Nos. 1168 of 1993 and 1169 of 1993 filed by the appellants/interveners under Order I, Rule 10 read pith section 151, C.P.C. were dismissed after hearing arguments of all the concerned parties, by observing that the dispute between the parties of the suit is in respect of allotment and leases of two Flats Nos. A-16, 4th floor and A-35, 10th floor, both located in Aamir House Plot No. CL-8/23, Fatima Jinnah Road, Karachi. The appellants were not the parties to the Suit No. 278 of 1983 and Execution Application No. 79 of 1995 (old Execution Application No. 37 of 1986), thus the dispute of the appellants and opponents/respondents mentioned above did not fall within the jurisdiction of the Banking Court, particularly when the Decree has already been satisfied and Execution Application has been- withdrawn by the Decree Holder vide order dated 30.08.1997. However, the learned Banking Court left the appellants at liberty to approach the Civil Court for redressal of their grievances. Both appellants have challenged the said impugned order of learned Banking Court before this Court.
2. Record of the present appeal reflects that no one has ever appeared before this Court on behalf of respondents Nos. 1 to 3, however, the attorney of respondent No. 4 and respondents Nos. 3 to 8 have filed their objections to this appeal and also argued the matter.
3. Brief facts of the case are that the respondent No. 1 namely Ahmed Construction Co. Limited had obtained loan from respondent No. 2 i.e. Habib Bank Limited for two times in the year 1976 and 1977 against Registered mortgage of the property i.e. Plot No. 8/23, Civil Line, Karachi (where two subject flats of this appeal have been located). In 1983 Habib Bank Limited (respondent No.2) filed a Suit No. 278 of 1983 against Ahmed Construction Co. Ltd for recovery of borrowed amount, which suit was Decreed vide judgment dated 14.10.1984 and thereafter its Execution No. 37 of 1986 (new number is 79 of 1995) had also been disposed of being satisfied vide order dated 06.02.1986.
4. The case of present appellants/interveners is that they had purchased the Flats Nos. A-35 and A-16 situated in Aamir House, constructed on plot No. CL-8/23, Fatima Jinnah Road, Karachi (subject properties of Suit No. 278 of 1983) vide sub-lease dated 20.08.1984 and 30.7.1984 respectively from respondent No. l's authorized representative/Managing Director namely Choudhry Maqbool Ahmed son of Choudhry Nazir Ahmed, who on the contrary in Execution Application No. 37 of 1986 (Suit No. 278 of 1983) submitted a statement, whereby he wrongly stated that both the Flats of appellants/interveners are lying vacant and undisposed of while the sub- leases of both Flats had already been mortgaged by the appellants/interveners with M/s. Middle East Bank limited with consent and no objection of respondent No.1's same representative/Managing Director Ch. Maqbool Ahmed. The Execution Application of the respondent No.1 had been disposed of vide order dated 06.02.1986. The appellants/interveners however, have filed two separate applications under Order I, Rule 10, C.P.C. being C.M.As. Nos. 1168 of 1993 and 1169 of 1993 before the learned Banking Court No. 1, Karachi with the request to implead them as party in said Execution Application No. 37 of 1986 (new No. 79 of 1995), which was already disposed of vide order dated 06.02.1986. Both application of the interveners were dismissed vide impugned order dated 09.04.2018, hence they have assailed the said order though filing the present appeal.
5. The attorney of respondent No.4 namely Syed Zulfiqar Abbas Zaidi has argued this appeal in person. He submit that all the flats constructed at plot No. 8/23 Aamir House, Civil Line Karachi had been mortgaged by the respondent No.1 Ms. Ahmed Construction Company against loan with Habib Bank Limited in 1976 and for second time in 1977, while the alleged sub-leases of subject Flats were executed in the names of Interveners on 30.07.1984 and 20.08.1984. He further pointed out that the Suit No. 278 of 1983 filed by the respondent No.2/Habib Bank Limited, for Recovery of borrowed amount against the Plaintiffs was Decreed on 14.10.1984 and its execution No. 37 of 1986 (New No. 79 of 1995) was disposed of on 06.02.1986, which proves that the documents of the suit property including the documents of two flats being claimed by the appellants/interveners were executed, while the Suit No. 278 of 1983 was pending for adjudication, Per section 52 of the Transfer of property Act, 'during the pendency of legal proceedings the property under litigation cannot be transferred, sold of mortgaged by the owner(s) of the properties, hence loan or mortgaged on any alleged lease is deemed to be a fraud with Financial Institution'. The attorney of respondent No.4 has submitted further that the respondent No.4 had purchased the subject Flat No. A/35 from one Roshan Ali to whom the sale of flat was confirmed by this Court in Execution Application No. 37 of 1986.
6. The facts mentioned above clarify the legal status of the appellants/interveners, who have no concerned with the grievance of the parties of Suit No. 278 of 1983, which was filed by the Habib Bank Limited against the respondent No.1 for recovery of borrowed amount took by them in the year 1976 and 1977 and more important aspect is that the said Suit No. 278 of 1984 and its execution No. 37 of 1986 (New No. 79 of 1995) have been disposed of, therefore, in disposed of matter how they could have been joined as party. In our view the learned Banking Court had rightly dismissed the applications of the appellants filed under, Order I, Rule 10, C.P.C. However, they may approach the Civil Court having jurisdiction to entertain their grievances in accordance with law. Through short order dated 24.11.2022, we had dismissed the instant First Appeal No. 51 of 2018 of the appellants along with all pending applications. There shall be no order as to cost.