' ABAID ULLAH KHAN, J.--This appeal by Messrs Benque Indosuez, Karachi, impugning the validity of the judgment and decree secured by respondents 1 and 2 for possession through specific performance of contract of sale of Property No. S-80-R-33/35, known as 10-Mozang Road, Lahore, against respondents 3 to 6, passed by the learned Civil Judge, Lahore, on 19th July, 1986, arises out of the following circumstances. As the perusal of the judgment indicates respondents 3 to 6 (who are brothers) entered into an agreement, which was reduced into writing on the 21st January, 1975, for the sale of the property in question to respondents 1 and 2 for a consideration of Rs.4,00,000. An amount of Rs.1,00,000 was fixed as earnest money and the respondents paid Rs.1,20,000 on various dates given below:--
(i) Rs.60,000 on 21-1-1975 vide pay order. (ii), Rs.10,000 on 24-4-1975 vide pay order.
(iii) Rs.20,000 on 25-3-1975 vide pay order.
(iv) Rs.30,000 on 25-3-1975 in cash.
' As alleged by respondents 1 and 2 though they were prepared to pay the balance of the price and ready to fulfil their part of the contract yet respondents 3 to 6 did not respond. They instituted suit on the 20th April, 1976, for specific performance of contract of sale and possession of the property against respondents 3 to 6. After protracted trial the suit was decreed on the 10th July, 1986, and respondents 1 and 2 were directed to pay the balance price of Rs.2,80,000 till the 15th August, 1986.
2. It so happened that respondent 3 opened his account with the appellant-Bank on the 7th March, 1982. For availing the facilities of advances, credit, overdraft and other financial accommodation to boost his export business extended by the appellant, respondent 3 offered security of equitable mortgage over the property in dispute. He deposited title deeds relating to the property with the appellant-Bank at Karachi. He executed various other documents including demand promissory note, letter of continuity, letter of guarantees and agreement of hypothecation of goods in favour of the appellant as security for the credit facilities.
3. As stated by the appellant, respondent 3 did not repay the loan and a sum of Rs.27,21,900 was due from him on the 3rd December, 1985. The appellant filed a suit in the High Court of Sind, Karachi, under the Banking Companies (Recovery of Loans) Ordinance, 1979, for the recovery of the aforementioned amount alongwith interest against respondents 3 to 6. The suit is pending adjudication.
4. The appellant-Bank has come up with the plea that respondents 1 and 2 obtained judgment and decree for possession by specific performance of contract of sale against respondents 3 to 6 through collusion and fraud. It blames respondents 3 to 6 for not bringing to the notice of the learned Court the fact of mortgage to which the property had been subjected. It makes grievance of the fact that though the suit was filed in 1976 the same was not seriously pursued by either of the parties till 1986 and that the entire evidence of the parties was recorded in the year 1986 and the decree was secured in haste.
5. When called upon to explain the locus standi of the appellant to assail the impugned judgment and decree in appeal the learned counsel referred to the decision of the Supreme Court of Pakistan in the case of H.M. Says and Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65, which qualifies the right of a stranger to a suit or proceedings to prefer appeal against the judgment affecting him with the caveat that he might properly have been a party in the suit or proceedings. In the instant case the contract of sale had been concluded as far back as on the 21st January, 1975, and the suit to enforce it was instituted on the 20th April, 1976. The appellant, in whose favour respondent 3 effected mortgage of the property in 1982, could not have been made a party in the suit brought by respondents 1 and 2. Admittedly the right of an owner to sell the property even if it is under mortgage is not denied. The agreement to sell the property had been in existence for about eight years before the mortgage was created. Consequently respondents 1 and 2 had prior right to enforce the agreement of sale notwithstanding the mortgage of 1982 in favour of the appellant.
6. The suit remained pending for more than ten years and keeping in view the current state of affairs of the cases pending in various Courts especially in Lahore recording of evidence in 1986 could not be described to be so unusual as to give the impression of any collusion between the parties. The facts of the precedent case Mst. Makhdooma v. Muhammad Arif PLD 1982 Kar. 212, cited by the learned counsel, were quite different and are distinguishable from those of the case in hand and are hardly relevant for the purpose of advancement of the appellant's case.
7. The learned counsel drew attention to the provisions of section 54 of the Transfer of Property Act, 1882, which states that contract of sale does not, of itself, create any interest in or charge on the property. However, the contract of sale of the property in dispute did vest respondents 1 and 2 with the right to get it enforced and on its enforcement they were to become owners of the property.
8. In view of the above, the appellant has no locus standi to file appeal and the same is hereby dismissed in limine.