I. A 94/2018 (D.B.) Sindh High Court, Karachi

Sindh High Court · 2022 · Before Abdul Mobeen Lakho

Instant Appeal has been filed against the impugned order dated 13.09.2018 passed by the learned Banking Court No.II, at Karachi in Execution Application No.3 of 2018 (in Suit No.549 of 2016), whereby, two applications; one under section 12(2) CPC read with Section 151 CPC and the other under Order XXI Rule 58 & 60 CPC read with Section 151 CPC filed by the appellants as objectors with the prayer to set aside the judgment dated 10.11.2017 and decree dated 14.11.2017 respectively, passed in the abovementioned suit, as well as to recall and set aside the order dated 26.01.2018 passed by the learned Banking Court for attachment of mortgaged property, have been dismissed. 2. It has been contended by the learned counsel for the appellants that the learned Banking Court has erred in facts and law while dismissing the aforesaid applications, and failed to appreciate that the judgment and decree passed in the above suit and the order for attachment of the mortgaged property have been obtained through fraud and misrepresentation of facts. According to learned counsel for the appellants, the defendant No.1 in the above suit i.e. M/s. Uni Traders does not exist, whereas, the address of the defendant No.2, namely, Muhammad Sabir S/o Latifullah was wrongly mentioned, therefore, the summons could not be served on such addresses, nor the appellants were aware about any proceedings before the learned Banking Court, therefore, could not establish their claim, right and entitlement over the mortgaged property, whereas, the appellants are in lawful possession alongwith their mother since 1989. According to learned counsel for the appellants, the subject mortgaged property was purchased by the appellants’ parents out of their own funds in the name of their brother, namely, Muhammad Sabir, who was the eldest son, however, the appellants are residing alongwith their parents in the suit property and the other property bearing No.N-159 was purchased in the name of appellants’ mother after taking loan from HBFC, however, in the year 2006 parents of the parties decided to distribute the share value of their properties amongst their children, including appellants and the respondent No.3 in accordance with law of inheritance. According to learned counsel for the appellants, the respondent No.3 and his brother and sister executed affidavits to the effect that they have taken their share from the above two properties and the respondent No.3 also agreed to register general power of attorney in respect of the suit property in favour of the appellants, whereas, original file of the subject properties including sale deed and lease deed was also handed over to the appellants by the respondent No.3.

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