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Civil Miscellaneous Nos.4800 and 243 of 2014 in Civil Suit No.309 of 2006, decided on 11th September, 2014.

----Ss. 12, 9 & 54---Civil Procedure Code (V of 1908), O.I, R.10 & O.XXXIX Rr.1, 2---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) Ss.19 & 15---Suit for specific performance of contract to sell immovable property; for possession and mandatory and permanent injunction---Impleading of decree-holder bank (in a separate banking suit) pertaining to the same property, as necessary party---Plaintiff inter alia sought direction to restrain proceedings for execution of decree pending before Banking Court in a separate suit but pertaining to the same property which was mortgaged in favour of the bank---Contention of plaintiff was that he had purchased the property in question from the defendants and was partially in possession of the same; and in case proceedings for execution of decree before Banking Court were not stayed and mortgaged property was sold; he would suffer irreparable loss---Held, that plaintiff did not implead the decree-holder bank as defendant in the suit when the suit was filed and there was no grievance mentioned against the now-proposed defendant (the bank) by the plaintiff---Admittedly, the property stood mortgaged in favour of the bank prior to execution of alleged agreement to sell the property---Record revealed that said agreement was executed during pendency of the banking suit filed by the bank---High Court observed that in such circumstances, applications to restrain execution proceedings before the Banking Court or to implead the decree-holder bank as defendant, could not be accepted, and were dismissed, accordingly. S. Amjad Hussain for Applicant. S. Danish Ghazi for Intervener.

Through this application, it is prayed that Execution No.17 of 2009 in Suit No.188 of 2004 pending before Banking Court No.3 at Karachi be stayed in view of the pendency of this suit. Learned counsel for the plaintiff submits that he purchased the subject property from the defendants and paid a sum of Rs.6 Millions as a part consideration of the suit property. He states that he is partially in possession of the suit property and running his business and in case the proceedings before the Executing Court are not stayed he will suffer irreparable loss. Learned counsel for the proposed defendant (Bank) says that this Court is not sitting in Appeal and therefore execution cannot be stayed in this suit. It is an admitted fact that suit was filed before the Banking Court in the year 2004 on the basis of mortgage, registered to protect the interest of the Bank in respect of the finance facility extended to the defendants in suit, who are also defendants in this suit. Plaintiff claims to have purchased suit property admittedly when the property stood mortgaged through a registered document in favour of the Bank. Although learned counsel for the plaintiff submits that he made required enquiries before entering into the agreement but no documentary proof is annexed with the plaint to that effect. It is also not mentioned in the plaint that any Search Certificate was applied before entering into claimed agreement. In these proceedings, I am not sitting as an Appellate Forum of the Banking Court and in original jurisdiction while not hearing any appeal in the execution proceeding, in my humble view execution cannot be stayed by passing an order in this suit, therefore, this application is dismissed. 2. Through this application, it is prayed that proposed defendant (HBL) may be made party in these proceedings on the ground that the suit property stands mortgaged with the Bank and a suit has been filed before the Banking Court No.III at Karachi, which stands decreed in favour of the plaintiff (HBL) of such suit and an execution has been filed through which auction of the suit property is prayed. Learned counsel for the plaintiff submits that he has an interest in the property as he had entered into an agreement to purchase this property from the defendants. According to him he has paid a sum of Rs.6 Millions and remaining amount of Rs.6 Millions is yet to be paid by him to the defendants. He further submitted that he has moved an application before the Executing Court under Order XXI, Rule 58, C.P.C., which application has been dismissed and he has filed a review in respect of such order. Learned counsel for the proposed defendant (HBL) submits that to the knowledge of the counsel, plaintiff has not preferred any appeal or petition against such order. He submits that the remedy lies before the Executing Court and not by way of filing of this application, plaintiff cannot be allowed to seek a remedy which ought to have been availed before the Executing Court, therefore, this application is not maintainable. He further submits that Bank was not party to any claimed agreement between the plaintiff and the defendants and the property stood mortgaged with the Bank prior to the execution of claimed agreement between the plaintiff and the defendants in respect of suit property and moreover plaintiff did not implead the proposed defendants as defendants at the time of institution of the suit. He further says that controversy is between the plaintiff and the defendants and proposed defendant (HBL) is not a necessary party in adjudication of such dispute. It is an admitted position that sale agreement dated 17-11-2005 between the plaintiff and the defendants was executed during the pendency of Suit No.188 of 2004, filed by proposed defendants against the defendants before the Banking Court, if plaintiff is so much interested in the suit property and high stakes are involved, plaintiff may participate in the auction proceedings and get the property at forced sale value. It is also a fact that plaintiff did not implead the proposed defendant as defendant in the suit in the year 2006 when this suit was filed. There is no grievance mentioned in the plaint against the proposed defendant and admittedly the property stood mortgaged prior to execution of claimed agreement. In such situation this application is dismissed. KMZ/M-183/Sindh Application dismissed.

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