1. ' The applicant filed application under section 12(2), C.P.C. Against the consent judgment and decree passed in Suit No,1591 of 1997 to set aside the same only to the extent of Property No,33/4, Block 7 and 8, at rear side of Property No,33/4 Banglore Coop. Housing Society, Karachi, on the ground that by misrepresentation, fraud, with the consent of the parties it was ordered that said property be sold, whereas same is not owned by the defendants nor defendants have any right, title or interest in it.
2. ' The plaintiff Messrs Allied Bank Ltd. And defendants of Suit No,1591 of 1997 remained absent, although plaintiff and defendants Nos.5 to 11 were served through publication of notice in newspaper. Mr. Zamir-ul-Haque, Advocate, filed power on behalf of defendants Nos.1 to 4. The defendants Nos.1 to 4 did not file counter-affidavit to application under section 12(2), C.P.C.
3. ' Heard Mr. Ejaz Ahmed, Advocate for the applicant.
4. ' Brief facts for the purpose of disposing of the application are that the plaintiff-Bank filed suit for recovery of Rs.441,494,073 against the defendants. The plaintiff also prayed for final mortgage decree in respect of Property No,33/4, admeasuring 980 square yards, situated in Block 7 and 8.
5. Banglore Cooperative Housing Society, Karachi.
6. ' An application under Order XXIII, rule 3, C.P.C. Was filed and while requesting to pass decree in terms of application, it was prayed that:--
(a) By sale of Vessels by the mortgagor TSL in consultation with A.B.L., TSL represents that it expects to sell the Vessels, on, as is where is basis a sum of US$ 2,500,000.00 equivalent to approximately Rs.12.50 crore.
(b) By sale of the Tristar Office Building at Plot No,33/4, Block 7 and 8, Banglore Co-operative Housing Society, Main Share-e-Faisal, Karachi (Mortgaged Property) admeasuring 980 square yards, with construction thereon to be sold by mutual consent or purchase by A.B.L. At a price determined by mutual consent, TSL represents that the value should be about Rs.10.00 crore on as is where is basis.
(c) By sale of property stated to be bearing No,33/4, Block 7 and 8, Banglore Cooperative Housing Society, Main Share-e-Faisal, Karachi, measuring 800 square yards (stated to be on a Katchi Abadi Scheme), commonly known as Dervesh Colony being a separate portion adjacent and at the rear of the mortgaged property.
(d) By sale of property, B-12, K.D.A. Scheme No,1 and after satisfying the first charge holders, Prudential Commercial Bank Limited.
(e) By sale of shares of Delta Insurance Company Limited held by the Debtors.
7. ' By sale of all properties if in the name of TSL/ Debtors and mentioned in Schedule II, as prepared and supplied by A.B.L., which may not be sold or disposed of until the adjustment of immediate liabilities as agreed.
(g) In the event the aforesaid amounts are not recovered within a reasonable period being about 6 to 8 months, in accordance with the terms of this agreement the same shall be recovered by sale of properties mentioned in Schedule II, if belongs to TSL, and if any is left, the TSL shall pay the same from their resources, if any, including any expenses that may have been incurred for recovery of the moneys in (a), (b) and (c) above."
8. ' The learned Advocate for the applicant argued that property, bearing No,RL-19, having area 597 square yards in Overseas Cooperative Housing Society Ltd. Karachi, is his property and defendants have no right or title over it. In support of his contention learned counsel drew my attention to registered Sub-Licence No,2 dated 26-1-1980, executed between the applicant and Overseas Cooperative Housing Society Ltd. Whereby Plot No,RL-19, measuring 597 square yards was allotted to him. The learned Advocate also pointed out share certificate issued by the Society in favour of applicant, site-plan, possession and demarcation letter and plan approved by the Karachi Building Control Authority. From all the documents it appears that prima facie applicant is the owner of Plot No,RL-19, admeasuring 597 square yards and said plot is situated on the rear side of Plot No,RL/4, owned by the defendants, having an area of 980 square yards, which defendants had mortgaged with the plaintiff-Bank.
9. ' By misrepresentation in the application under Order XXIII, rule 3, C.P.C., it is stated that defendants are owners of two plots of same number, viz, 33/4, Block 7 and 8, Banglore Cooperative Housing Society Ltd., having an area of 980 square yards and other having an area of 800 square yards.
10. Even in the application under Order XXIII, rule 3, C.P.C. It is stated that decretal amount be adjusted by sale of property stated to be bearing No,33/4, Block 7 and 8, Banglore Cooperative Housing Society Ltd. (stated to be in a Katchi Abadi Scheme commonly known as Dervesh Colony being a separate portion adjacent and the rear of the mortgaged property). The learned Advocate drew my attention to lay out plan to establish that Plot No,RL/19, owned by him, is situated on the rear side of the defendants Plot No,RL/4.
11. ' The learned Advocate argued that the parties obtained the judgment and decree by fraud and misrepresentation and now on the basis of said judgment and decree are trying to sell the plot owned by him.
12. ' I have gone through the application under section 12(2), C.P.C. And documents filed alongwith it.
13. From the record it appears that prima facie the applicant is owner of the said plot, bearing Survey No,30, Survey Sheet 35P/I, Plot No, R1-19, measuring 597 square yards, Overseas Cooperative Housing Society Ltd., whereas the decree passed by the Court is in respect of some properties stated to bearing No,33/4, Block 7 and 8, Banglore Cooperative Mousing Society Ltd., main Share-a- Faisal, Karachi, though situated at the rear side of Plot No, RL/4, owned by the defendants.
14. ' In order to appreciate the point, I would like to reproduce Order XXI, rule 58, C.P.C., section 12(2), C.P.C. And subsection (7) of section 19 of Financial Institutions (Recovery of Finances) Ordinance, 2001, which read as under:-- "Order XXI, rule 58; Investigation of claims to, and objections to attachment of, attached property. - --(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:
12. Bar to further suit:--
(1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies.
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.
19. Execution of decree and sale with or without intervention of Banking Court:-- (3)
15. (4)
16. (5)
17. (6)
(7) Notwithstanding anything contained in the Code of Civil Procedure 1908 (Act V of 1908), or any other law for the time being:--
(a) The Banking Court shall follow the summary procedure for purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of filing of the claims or objections:
(b) If the claims or objections are found by the Banking Court to be mala fide or filed merely to delay the sale of the property, it shall impose a penalty up to twenty per cent. Of the sale price of the property:
(c) The Banking Court may, in its discretion, proceed with the sale of the mortgaged, or pledged or hypothecated property if, in its opinion the interest of justice so requires: (Underline is mine)
18. ' Subsection (2) of section 12, C.P.C. Provided special remedy to get an order, judgment and decree, set aside by an aggrieved person whether he is party to proceedings or not, if the same is obtained by fraud, misrepresentation or for want of jurisdiction, whereas under Order XXI, rule 58, C.P.C. Court has to investigate the claim and objection to the attachment of property on the ground that such property is not liable to such attachment.
19. ' Section 19(7) of Ordinance, 2001 provided that notwithstanding anything contained in C.P.C., Banking Court, has to follow summary procedure for the purpose of investigation of claims and objections in respect of attachment or sale of any property whether or not mortgaged, pledged or hypothecated. It is further provided by the proviso to subsection (7) of section 19 of Ordinance, 2001 that:-- "Provided that the financial institution gives a written undertaking that in the event the objections are found to be valid, or are sustained, it shall in addition to compensating the aggrieved party by the payment of such amount as may be adjudged by the Banking Court also pay a penalty up to twenty per cent. Of the sale proceeds and such amounts shall be recoverable from the financial institution in the same manner as in execution of decrees passed hereunder".
20. ' If we read all these provisions together, it appears that each of them has provided separate remedy. The remedy under subsection (2) of section 12, C.P.C. Is attracted when an order, judgment or decree has been obtained by fraud and misrepresentation and any person aggrieved by said order, judgment and decree can invoke the same.
21. ' Order )0U, rule 58, C.P.C. Provided remedy to challenge the attachment order on the ground that property is not liable to be attached under the decree.
22. ' Whereas under subsection (7) of section 9 of Ordinance, 2001, it is for the Banking Court to investigate claims and objections in respect of attachment or sale of any property whether or not mortgaged and all questions relating to the right, title or interest of person whether or not party to decree in the attached property has to be adjudicated upon and determined by the Banking Court executing the decree and not by a separate Court.
23. ' Now reverting to the case in hand, it appears that in the judgment and decree, passed by the Court, the property upon which applicant is claiming interest, has not been mentioned in decree: though situated at the rear side of Plot No,33/4, Block 7 and 8, Banglore Coop. Housing Society, Karachi.
24. ' In my view to meet the ends of justice let this application be treated as an application under section 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 read with section 21 rules 58 and 90, C.P.C. Read with section 12(2), C.P.C. And be placed in the file of Execution No,102 of 2000, filed by the plaintiff/ DH Bank. Office of Execution Branch is directed to issue notice to DH, JD and to parties who are claiming interest in the property, if any, and fix the application for hearing on 15-12-2003.