' MAMOON KAZI, J.---This appeal and High Court Appeal No,108 of 1990 are directed against the common order passed by a lerned Single Judge of this Court dated 11-4-1990 whereby the applications separately filed on behalf of the appellants under Order 34, Rule 14(1), C.P.C. and section 12(2) read with section 151 and Order 21, Rule 58, C.P.C., respectively were dismissed.
2. Suit No, 437 of 1985 was filed in this Court by the respondents against appellant Hatimbhai under Order 37, Rule 2, C.P.C. for recovery of Rs, 6 lacs said to he due on two promissory notes of Rs,2 lacs each and two promissory notes of Rs,1 lac each. A prayer for foreclosure and sale of mortgaged property of the appellant serving as security for an amount of Rs,5 lacs was also made in the said suit. The mortgage was created by deposit of title deeds of the property owned by the appellant, that is to say, 1/32 undivided share in the property bearing Survey No, 103 sheet S.B.7 together with Shop No,21 situated on the ground floor of the building known as Bhaiji Wala Building.
3. The cause' of action, according to the respondent, accrued to him at Karachi on 3-9-1984 when the appellant had executed the said promissory notes and created the said equitable mortgage in respect of the aforesaid property.
4. The said documents, according to the case of the respondent, had been executed by the appellant in his favour to serve as security in respect of friendly loan of Rs,6 lacs taken by the appellant from the respondent.
5. The respondent had prayed for a judgment and decree against the appellant for a sum of Rs,6 lacs with interest at 15 per cent. from the date of filing of the suit, based upon the said promissory notes, and/or in the alternative, a preliminary decree as contemplated by Order 34 of the C.P.Code.
6. The appellant filed an application under Order 37, Rule 3, C.P.C. before the learned Single Judge of this Court which was allowed by a consent order and permission was granted to the appellant to appear and defend the suit on furnishing security in the sum of Rs,3 lacs to the satisfaction of the Nazir of this Court. The appellant, however, failed to furnish such security, with the result that, the suit was decreed, on the basis of the said pro-notes.
7. Thereafter, an Execution Application No,23 of 1987 was filed by the respondent before the learned Single Judge seeking sale of the property in respect of which the said equitable mortgage had been created by the appellant. An application purporting to be under Order 34, Rule 14, C.P.C. was then filed on behalf of the appellant as, according to him, Rule 14 of Order 34 created a bar in respect of sale of immovable property where a mortgagee had obtained a decree for payment of money only. Another application purporting to be under section 12(2) of the Code of Civil Procedure was also filed on behalf of appellant Shabbir,. who is son of appellant Hatimbhai, as according to him, the property which was sought to be attched by the respondent was a partnership property wherein the said appellant also had an interest. Both the applications were dismissed by the same common order dated 11-4-1990 which has now been separately impugned in these two appeals.
8. The learned Single Judge, while referring to the application filed on behalf of appellant Hatimbhai under Order 34, rule 14, C.P.C. ruled that: "The suit was not decreed, as contended by Mr.S.A.Samad Khan, on the basis of the mortage by deposit of title deed, hence the provisions contained in Order 34, Rule 14(1), C.P.C. have no application to the facts of the instant case."
In regard to the other application, it was observed by the learned Single Judge as under: "The only case made out in that application is thet he is partner in the firm of Burhani Hardware who is doing business at Shop No,21 of the building in question.
' I have perused my order dated 3-4-1988 as well as affidavits of the parties filed in support of the above application and I am clearly of the opinion that the provisions of section 12(2), C.P.C. do not apply to the facts of the instant case. The order passed by me on 3-4-1988, I find, is neither the outcome of any misrespresentation nor has it been passed without jurisdiction. No documentary eivdence has been placed on record to pursuade me to review my order dated 3-4-1988."
9. Mr. S.A. Samad Khan, learned counsel for the appellant, has contended that the bar referred to in Order 34, Rule 14, C.P.C. in respect of sale of immovable property is absolute as only a money decree was obtained by the respondent. Therefore, according to the learned counsel, the learned Single Judge has failed to appreciate that a money becree always remains vulnerable under Order 34, Rule 14, C.P.C. whenever a mortgage of immovable property is claimed in the plaint. Mr. K.A.
Wahab, learned counsel for the respondent, on the other hand, has fully supported the impugned order.
10. Rule 14 of Order 34 around which the controversy revolves provides as under:--- "14. Suit for sale necessary for bringing mortgaged property to sale.---(1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to 'sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 11, Rule 2."
Even a cursory look at Rule 14 indicates that what the said Rule lays down is that in case where the claim of the plaintiff is based on a mortgage, the mortgage property cannot be sold, except by institution of a separate suit in this regard, when the plaintiff has obtained only a money decree in satisfaction of the claim. Nothing can be spelled out from the said rule to indicate that the Rule would be attracted only in case the suit is decreed on the basis of a mortgage. In the present case, as has been pointed out earlier, the claim was based partly on the promissory notes executed for a total amount of Rs,6,00,000 and partly upon equitable mortgage created by deposit of title deeds to cover an amount of Rs, 5,00,000.
11. Both the learned counsel have sought support from precedents and the first case relied upon by Mr. S.A. Samad Khan in this regard was decided by the Supreme Court and has been reported as Messrs Conforce Limited v. Messrs Rafique Industries Ltd. PLD 1989 SC 136. In this case the provisions of Order 34, Rule 14, C.P.C. were noticed by the Supreme Court and it was held that a mortgagee obtaining a money decree on a claim arising under a mortgage cannot realise the decretal amount by having the mortgaged property sold in execution of such money decree. Our attention was also invited by Mr. SA. Samad Khan to the case of National Bank of Pakistan v. S.A. Sattar PLD 1962 (W.P.) Kar. 271, although, according to the learned counsel, the case is hardly attracted to the facts of the present case. The learned counsel, no doubt, appears to be right because provisions of Order 34, Rule 14, C.P.C. were invoked by the plaintiff in this case as providing an exception to the general rule laid down in Order 2, Rule 2, C.P.C., which requires that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Howerver, it was observed in this case that the provisions embodied in Order 34, Rule 14 would be applicable only when the plaintiff first obtains a decree for the payment of money in satisfaction of a claim arising under a mortgage. The learned Judge, who delivered the judgment in this case further went on to observe that a decree obtained by the plaintiff under Order 34, Rule 14, C.P.C. in Form No, 5-A of Appendix to the First Schedule to the C.P.Code would not be a decree under Order 34, Rule 14 of the same Code. In fact, this case has also been referred to by the learned Single Judge in the impugned order. In our view, none of the two cases just referred to by us can be called in aid to support the contention that the immovable property of the appellant could not be sold in execution of the decree obtained by the respondent against the appellant. However, Mr. SA. Samad Khan, has also placed reliance upon the case of Panaganti Ramarayanimgar v. Sri Rajah Velugoti Govinda Krishna Vachendra Bahadur Varu AIR 1927 PC 32. In this case a suit arose out of a transaction between the plaintiff and the Raja of Tuni which was embodied in Exh. 'A' and Exh. 'I' in the case. Exh. 'A' purported to deal with a mortgage with possession of immovable properties for a sum of eleven lakhs of rupees with interest at 10 annas per cent, per month, to be recovered from the rents and profits. Exh. 'I' purported to be a Muchilka or counterpart lease, by which the mortgagor Raja had taken a lease from the mortgagee of one of the said properties for a period of four years on payment of fixed yearly rent of Rs, 18,750 payable in three equal instalments, which was enquivalent to interest on 2-1/2 lakb at 10 annas per cent. per month. It was contened on behalf of the defendant in the case that the two deeds, Exhs. 'A' and T should be read together as forming parts of one transaction, the lease being in the nature of machinery for the purpose of realising interest due on the mortgage. This contention was accepted by their Lordships of the Privy Council. Similar view was taken by the High Court of Calcutta in Muhammad Yakub Mian Majumdar v. Hamid All AIR 1927 Cal. 884 under more or less similar circumstances as Page, J., while referring to the observations of the Privy Council in the aforesaid case, held that two separate deeds, one relating to the mortgage of immovable property and the other relating to the lease of the property would be read togther as forming parts of one transaction. In this case also the lease was held to be in the nature of machinery for the purpose of realising interest due on the mortgage.
12. In our view, although the facts of the present case arc not completely identical to those of the two cases decided by the Privy Council or the Calcutta High Court, but Mr. Samad Khan has nevertheless argued that the mortgage and the promissory notes were executed by the appellant in aid of each other and therefore, they are to be read together as forming part of one and the same transaction. He has further contended that the primary object behind execution of the said documents was to secure the loan, therefore, they formed part of the same transaction. Mr. KA.
Wahab, learned counsel for the respondent, has however, argued that since the mortgage was only for Rs,5,00,000 whereas the promissory notes had been executed for a total amount of Rs, 6,00,000 at least the claim of Rs, 1,00,000 being the difference between the two amounts did not arise under the mortgage. A natural corollary of the same, according to the learned counsel, would be that the mortgaged property could at least be sold in execution of the decree in respect of part of the claim for Rs, 1,00,000. In our view, even if it is held by us that the mortgage and the said promissory notes were parts of the same transaction, having been executed in aid of each other, to secure the said loan, the same can hardly clinch the issue in favour of the appellant. The claim in the suit was based on the said mortgage as well as the said promissory notes, as is evident from the plaint filed in the suit. The prayer clause in the plaint further indicates that the decree sought by the respondent was a money decree, or in the alternative, a decree based on the said mortgage.
Thus, there were two distinct and separate claims made by the respondent in the plaint which could be dealt with by the Court by following different procedures, one embodied in Order 34 and the other in Order 37 of the C.P. Code. The judgment, dated 29-9-1986, shows that the learned Single Judge by following the procedure laid down in Order 37, C.P.C. decreed the suit in favour of the respondent. The decree passed by the learned Single Judge in the suit was a simple money decree which was not based on the mortgage, but the same was based on the claim under the promissory notes, notwithstanding the reference by the learned Judge to the mortgage as well.
However, it is clear that only the part of the claim which was based on the promissory notes was considered by the learned Judge which resulted into passing of the said decree. Rule 14 of Order 34 would be applicable only when a claim arises under a mortgage, which obviously does not appear to be the case in the case in hand, as just pointed out by us. Consequently, we are unable to agree with Mr. S.A. Samad Khan that the order passed by the learned Judge is liable to be recalled as the order passed by the learned Single Judge is unassailable. H.CA. No, 107/1990 is, therefore, liable to be dismissed.
13. Turning to the question raised in the other appeal, we find that the learned Single Judge has already properly dealt with the same and he has rightly come to the conclusion that the provisions of section 12(2), C.P.C. are not applicable to the facts of the instant case. In fact, Mr. SA. Samad Khan, himself has failed to make a serious effort to pursuade us to reverse the findings arrived at by the learned Single Judge in this regard. Very cogent reasons. have been given by the learned Single Judge for the dimissal of the application filed by the appellant and we wholeheartedly agree with the observations made in this regard.
14. The upshot of the above discussion is that both the appeals are dismissed. The parties are, however, left to bear their own costs.