Civil Procedure Code (V of 1908)-
---O.XXXIV, .R.5 & O.IX, R.13--Suit relating to sale of mortgaged property Application for passing final decree Defendants, although served with notice, neither filing any objection/counter-affidavit nor appearing to oppose the application under O.XXXIV, R.5, C.P.C.- Trial Court, in circumstances, could pass the order on basis of averments contained in application--Such order not being an ex parte order, O.IX, R.13, C.P. C. was not applicable in respect thereof--Trial Court, therefore, was justified in dismissing application of appellant and two respondents under O.IX, R.13, C.P. C.
Yousuf Rafi for Appellant.
Nizam Ahmed for Respondents.
Date of hearing: 7th May, 1987.
MUHAMMAD ARIF VS NATIONAL COMMERCIAL BANK Ltd.1987 M L D 2059[Karachi]Before Ajmal Mian and Muhammad Mazhar Ali, JJMUHAMMAD ARIF--AppellantversusNATIONAL COMMERCIAL BANK Ltd. and 3 others--RespondentsHigh Court Appeal No.42 of 1979, decided on 07/05/1987.
JUDGMENT
AJMAL MIAN, J.---This appeal is directed against the orders dated 3-5-1976 and 7-10-78 passed by a learned Single Judge of this Court in Suit No.162/65.
2. The brief facts leading to the filing of the above appeal are that property bearing No.673/1-G-2, situated in Jamshed Quarters, Karachi (hereinafter referred to as the property) was purchased by respondent from the Settlement Department through PTO dated 30th Sept. 1961 which was followed by PTO dated 26-7-63.
It appears that on 10-6-65 respondent No.1 M/'s. National Commercial Bank Limited filed suit No.162/65 in this Court under Order XXXIV, rule 1, CPC on the averment that the property was mortgaged against the loan obtained by respondent No.3.
In the above suit respondents Nos.2, 3 and 4 were impleaded as defendants. A preliminary decree by consent was passed on 16-1-67. It was ordered that a Commissioner would be appointed for taking accounts for the purposes of adjusting the claim for supplies allegedly made by respondents No.2 and 3 to respondent No.1. It appears that late Salahuddin, Advocate, was appointed as the Commissioner in terms of the above consent preliminary decree. It further seem that he submitted two interim reports dated 4-3-68 and August, 1968, wherein he pointed that he could not complete the report as the parties had taken time. After that Mr. Paryani, Advocate, who was appearing for respondent No.1 filed a statement before the Commissioner stating therein, that respondent No.1 was under liquidation and that an official liquidator had been appointed and because of that by virtue of section 62 of the Banking Companies Ordinance, 1962, the question for consideration was, whether suit or the proceeding shall be continued in the Court. He prayed for the stay of the proceeding before the Commissioner. It may be pertinent to mention here that it appears that respondent No.3 has also taken loan from National Co-operative Bank and had created an equitable mortgage with the said Bank which in turn sub-mortgaged in favour of Karachi Central Co-operative Bank. Since respondent No.3 had not paid the loan amount, the Deputy Registrar, Co-operative Societies auctioned the property on 15-9-72 through a public auction. The appellant was successful bidder and his bid amount of Rs.48,0004 was accepted and the sale in his favour was confirmed on 16-9-72. The Deputy Registrar also issued a certificate of sale dated 20-9-72 in his favour. The official liquidator appointed for respondent No.1 Bank filed an application against the above sale before the Deputy Registrar, but application was dismissed by him on 28-9-72. Being aggrieved by the above order the Official Liquidator filed a revision under section 64-A of the Co-operative Societies Act, 1925, which was dismissed on 2-8-73.
3. The official liquidator also filed an application under Order I, rule 10, CPC for impleading the appellant as defendant which application was allowed by an order dated 26-3-73 and appellant was impleaded as defendant No.4 in the aforesaid suit. The appellant after being impleaded as defendant filed an application under Order I, rule 10 for getting National Co-operative Bank and Deputy Registrar impleaded but the said application was dismissed by an order dated 25-11-74.
I appear after that the official liquidator filed an application on 12-3-76 under Order XXXIV, rule 5 read with section 151, CPC (Miscellaneous Application No.1421/76) for passing of the final decree on the ground that the defendant had failed to make any payment of the amount and that they had not proved their claim before the commissioner. The above application had come up for hearing before a learned single Judge on 3-5-76 when none of the defendants or their counsel were present. The learned Single Judge by his order dated 3-5-76 granted the above application and passed the final decree. The present appellant and respondents Nos.2 and 3 filed two applications under Order IX rule 13, CPC i.e. one application by the appellant and one joint by respondents Nos.2 and 3 for setting aside the aforesaid order dated 3-5-76 but said applications were dismissed by an order dated 7-10-78. The appellant being aggrieved by the above two orders has filed the present appeal.
4. In support of the above appeal Mr. Yousuf Raft, learned counsel for the appellant, has urged as follows:-
(1) That since in view of the preliminary decree the accounts were to be taken, the learned single Judge was not justified in passing the final decree in violation of the terms of the preliminary decree.
(2) That the Commissioner was appointed by consent of the parties and since the Commissioner had expired it was equally the duty of respondent No.1 to have got appointed another Commissioner in place of the previous Commissioner.
(3) That the mortgage in favour of the respondent No.1 was not proper mortgage because it was based en PTO and no permission from the Chief Settlement Commissioner was obtained.
5. On the other hand, Mr. Nizam Ahmed, learned counsel for the respondent No.1 has contended as follows: -
(1) That the appeal is time-barred as the deficit Court-fee was paid after the expiry of the limitation.
(2) That the appellant has no locus standi to challenge either the preliminary decree or the final decree.
(3) That since the parties were served with respondent No.1's aforesaid miscellaneous application under Order XXXIV, rule 5, CPC and as no objections on counter-affidavit were filed and as none of defendants appeared to oppose the application the learned single Judge was justified in passing the above order dated 3-5-76.
(4) That a joint appeal could not have beer, filed against the above order dated 3-5-76 As well as against the order dated 7-10-78 and in any case the appeal against the first order had become time-barred by the time of filing this appeal.
6. We have noticed that the preliminary decree was passed with the consent of respondents Nos.2 and 3. The above respondents have not even filed any appeal against the order of the final decree dated 3-5-76. They have also not come forward to support the present appeal. It must, therefore, follow that they have accepted the final decree passed upon the mortgage.
7. In our view, the only question for consideration before us is, as to whether the learned single Judge was justified in passing the order dated 3 5-76 and thereafter the order dated 7-10-78. Admittedly all the defendants were served with the notice of respondent No.1/plaintiffs aforesaid application under Order XXXIV, rule 5 CPC and none had filed any objection/counter-affidavit to the said application nor any one appeared to oppose the application. In this view of the matter, the learned single Judge could pass the order on the basis of averments contained in the application. In terms of para.2 of the preliminary decree the respondents Nos.2 and 3 were to prove their claim before the Commissioner for the alleged supplies made by them to respondent No.1 which they failed to do so. Further question arises, whether the learned single Judge was justified in dismissing the appellant and respondents Nos.2 and 3's application under Order IX, rule 13, CPC. The learned Single Judge in his order under appeal has pointed out that Order IX, rule 13, CPC is applicable when there is an ex-parte decree or order whereas the order dated 3-5-76 cannot be said to be ex parte and, therefore, the learned single Judge was justified in dismissing the above two applications.
8. We are not inclined to touch upon the question, whether the mortgage in favour of respondent No.1 was valid or not as it is not necessary to go into that question in this appeal and it may also prejudice the-appellant in any subsequent proceedings.
9. The appeal has no merits and, therefore, it is dismissed with no order as to costs.
S.Q./M-225/K
Appeal dismissed.
---O.XXXIV, .R.5 & O.IX, R.13--Suit relating to sale of mortgaged property Application for passing final decree Defendants, although served with notice, neither filing any objection/counter-affidavit nor appearing to oppose the application under O.XXXIV, R.5, C.P.C.- Trial Court, in circumstances, could pass the order on basis of averments contained in application--Such order not being an ex parte order, O.IX, R.13, C.P. C. was not applicable in respect thereof--Trial Court, therefore, was justified in dismissing application of appellant and two respondents under O.IX, R.13, C.P. C.
Yousuf Rafi for Appellant.
Nizam Ahmed for Respondents.
Date of hearing: 7th May, 1987.
JUDGMENT
AJMAL MIAN, J.---This appeal is directed against the orders dated 3-5-1976 and 7-10-78 passed by a learned Single Judge of this Court in Suit No.162/65.
2. The brief facts leading to the filing of the above appeal are that property bearing No.673/1-G-2, situated in Jamshed Quarters, Karachi (hereinafter referred to as the property) was purchased by respondent from the Settlement Department through PTO dated 30th Sept. 1961 which was followed by PTO dated 26-7-63.
It appears that on 10-6-65 respondent No.1 M/'s. National Commercial Bank Limited filed suit No.162/65 in this Court under Order XXXIV, rule 1, CPC on the averment that the property was mortgaged against the loan obtained by respondent No.3.
In the above suit respondents Nos.2, 3 and 4 were impleaded as defendants. A preliminary decree by consent was passed on 16-1-67. It was ordered that a Commissioner would be appointed for taking accounts for the purposes of adjusting the claim for supplies allegedly made by respondents No.2 and 3 to respondent No.1. It appears that late Salahuddin, Advocate, was appointed as the Commissioner in terms of the above consent preliminary decree. It further seem that he submitted two interim reports dated 4-3-68 and August, 1968, wherein he pointed that he could not complete the report as the parties had taken time. After that Mr. Paryani, Advocate, who was appearing for respondent No.1 filed a statement before the Commissioner stating therein, that respondent No.1 was under liquidation and that an official liquidator had been appointed and because of that by virtue of section 62 of the Banking Companies Ordinance, 1962, the question for consideration was, whether suit or the proceeding shall be continued in the Court. He prayed for the stay of the proceeding before the Commissioner. It may be pertinent to mention here that it appears that respondent No.3 has also taken loan from National Co-operative Bank and had created an equitable mortgage with the said Bank which in turn sub-mortgaged in favour of Karachi Central Co-operative Bank. Since respondent No.3 had not paid the loan amount, the Deputy Registrar, Co-operative Societies auctioned the property on 15-9-72 through a public auction. The appellant was successful bidder and his bid amount of Rs.48,0004 was accepted and the sale in his favour was confirmed on 16-9-72. The Deputy Registrar also issued a certificate of sale dated 20-9-72 in his favour. The official liquidator appointed for respondent No.1 Bank filed an application against the above sale before the Deputy Registrar, but application was dismissed by him on 28-9-72. Being aggrieved by the above order the Official Liquidator filed a revision under section 64-A of the Co-operative Societies Act, 1925, which was dismissed on 2-8-73.
3. The official liquidator also filed an application under Order I, rule 10, CPC for impleading the appellant as defendant which application was allowed by an order dated 26-3-73 and appellant was impleaded as defendant No.4 in the aforesaid suit. The appellant after being impleaded as defendant filed an application under Order I, rule 10 for getting National Co-operative Bank and Deputy Registrar impleaded but the said application was dismissed by an order dated 25-11-74.
I appear after that the official liquidator filed an application on 12-3-76 under Order XXXIV, rule 5 read with section 151, CPC (Miscellaneous Application No.1421/76) for passing of the final decree on the ground that the defendant had failed to make any payment of the amount and that they had not proved their claim before the commissioner. The above application had come up for hearing before a learned single Judge on 3-5-76 when none of the defendants or their counsel were present. The learned Single Judge by his order dated 3-5-76 granted the above application and passed the final decree. The present appellant and respondents Nos.2 and 3 filed two applications under Order IX rule 13, CPC i.e. one application by the appellant and one joint by respondents Nos.2 and 3 for setting aside the aforesaid order dated 3-5-76 but said applications were dismissed by an order dated 7-10-78. The appellant being aggrieved by the above two orders has filed the present appeal.
4. In support of the above appeal Mr. Yousuf Raft, learned counsel for the appellant, has urged as follows:-
(1) That since in view of the preliminary decree the accounts were to be taken, the learned single Judge was not justified in passing the final decree in violation of the terms of the preliminary decree.
(2) That the Commissioner was appointed by consent of the parties and since the Commissioner had expired it was equally the duty of respondent No.1 to have got appointed another Commissioner in place of the previous Commissioner.
(3) That the mortgage in favour of the respondent No.1 was not proper mortgage because it was based en PTO and no permission from the Chief Settlement Commissioner was obtained.
5. On the other hand, Mr. Nizam Ahmed, learned counsel for the respondent No.1 has contended as follows: -
(1) That the appeal is time-barred as the deficit Court-fee was paid after the expiry of the limitation.
(2) That the appellant has no locus standi to challenge either the preliminary decree or the final decree.
(3) That since the parties were served with respondent No.1's aforesaid miscellaneous application under Order XXXIV, rule 5, CPC and as no objections on counter-affidavit were filed and as none of defendants appeared to oppose the application the learned single Judge was justified in passing the above order dated 3-5-76.
(4) That a joint appeal could not have beer, filed against the above order dated 3-5-76 As well as against the order dated 7-10-78 and in any case the appeal against the first order had become time-barred by the time of filing this appeal.
6. We have noticed that the preliminary decree was passed with the consent of respondents Nos.2 and 3. The above respondents have not even filed any appeal against the order of the final decree dated 3-5-76. They have also not come forward to support the present appeal. It must, therefore, follow that they have accepted the final decree passed upon the mortgage.
7. In our view, the only question for consideration before us is, as to whether the learned single Judge was justified in passing the order dated 3 5-76 and thereafter the order dated 7-10-78. Admittedly all the defendants were served with the notice of respondent No.1/plaintiffs aforesaid application under Order XXXIV, rule 5 CPC and none had filed any objection/counter-affidavit to the said application nor any one appeared to oppose the application. In this view of the matter, the learned single Judge could pass the order on the basis of averments contained in the application. In terms of para.2 of the preliminary decree the respondents Nos.2 and 3 were to prove their claim before the Commissioner for the alleged supplies made by them to respondent No.1 which they failed to do so. Further question arises, whether the learned single Judge was justified in dismissing the appellant and respondents Nos.2 and 3's application under Order IX, rule 13, CPC. The learned Single Judge in his order under appeal has pointed out that Order IX, rule 13, CPC is applicable when there is an ex-parte decree or order whereas the order dated 3-5-76 cannot be said to be ex parte and, therefore, the learned single Judge was justified in dismissing the above two applications.
8. We are not inclined to touch upon the question, whether the mortgage in favour of respondent No.1 was valid or not as it is not necessary to go into that question in this appeal and it may also prejudice the-appellant in any subsequent proceedings.
9. The appeal has no merits and, therefore, it is dismissed with no order as to costs.
S.Q./M-225/K
Appeal dismissed.
0 comments:
Post a Comment