1. This order will dispose of the application (C.M.A. No.3123 of 2000), filed by the defendant No. l under Order 7, Rule 11 read with section 151, C.P.C. For rejection of the plaint on the ground that the plaintiff has no cause of action to file the suit.
2. Briefly the facts for the disposal of the present application are that the plaintiff obtained sub-lessee of Shop No.25 on ground floor sub-plot No.4, of Plot No.171-2-A. Block 3 P.E.C.H.S. Karachi in commercial complex, known as Rabi Centre. The plaintiff through her husband and attorney created equitable mortgaged by deposit of title deed in favour of the United Bank Limited as, collateral security for financial facility, granted to M/s. Hosama Enterprises in the sum of Rs.3,75,000.
3. M/s. Hosama Enterprises, the principal borrower failed to liquidate the loan. The defendant No.1 filed recovery Suit No.242 of 1992 before the Banking Tribunal No.2 at Karachi against the principal borrower and the plaintiff, which was decreed by judgment dated 15-9-1992. The mortgaged property was ordered to be sold in order to recover the decretal amount if it is not paid. It may be pointed out that before filing of the suit referred to above, M/s. Shaikh Sajjadh & Sons (Pvt.) Ltd., was ordered to be liquidated in terms of Banking Companies Ordinance, 1962, in J.M. No.27 of 1988. The shop was auctioned in the liquidation proceedings under orders of the Court and sale was confirmed on 8-2-1990, possession was handed over to the defendant No.2 on 3-4-1990. Public notice for sale of the shop was issued on 9-8-1993 in execution of the decree in favour of the defendant No. l but could not be sold as the same was already sold to defendant No.2 in J.M. No.27 of 1988. The plaintiff for the first time served notice on the defendant No. l on 19-1-2000 and filed the suit for damages quantifying 1,16,94.185 due to loss of property by sale and a sum of Rs.1,00,00,000 as compensation due to mental torture and uneasiness to the plaintiff.
4. I have heard the learned counsel for the parties.
5. Admittedly, the shop owned by the plaintiff was mortgaged by her through her husband to liquidate the loan granted by the defendant No. l to M/s. Hosama Enterprises through the suit was decreed and the shop in question was ordered to be sold to liquidate decretal amount but before the decree, the shop was sold under order of this Court in J.M. No.27 of 1988 in favour of the defendant No.2. The plaintiff has no cause of action against the defendant to bring the suit for damages. The plaintiff herself has admitted the f creation of mortgage by deposit of title deed. The decree was granted in favour of defendant No. 1, whereas, the defendant No.2 is the purchaser of the shop in J.M. No.27 of 1988 under orders of the Court, therefore, the plaintiff has no cause of action to bring the suit against the defendants. The property has been sold under orders of the Court, which cannot be basis of suit for damages against the bank and auction purchaser.
6. Consequently, the application is allowed and the plaint of the suit is rejected subject to the payment of Rs.25,000 as a special costs under section 35-A of the C.P.
7. H.B.T./A-168/K