Mst. Alam Bibi through L.Rs vs Mst. Alam Bibi through L.Rs

ASIM HAFEEZ, J.----This application, under section 12(2) of Code of Civil Procedure, 1908 ("the Code "), was filed on 30.04.2015 by Mr. Muhammad Latif, subsequent transferee of the propert y in question from the auction purchaser - Mr. Abid Hussain (respondent No.14). The applicant has sought declaration against judgment dated 01.04.2015, whereby this court allowed the appeal bearing EFA No.777/2002 and set-aside auction dated 18.07.2002, confirmed on 04.10.2002. The applicant was impleaded respondent No.15 in the main appeal.

2. Brief facts, necessary for adjudication of this application, are that applicant allegedly acquired property , for consideration, from the respondent No.14, which transaction was recorded through sale deed dated 17.05.2003 and ownership of the applicant was entered in the record. It is pertinent to mention that auction purchaser has sold the property during the pendency of EFA No.777/2002, filed by the owner / judgment debtor to question the validity of auction sale and order of dismissal of the objections by the learned Judge Bank ing Court-II, Lahore. The appeal was allowed, and auction sale was set aside, being devoid of any legality . The applicant filed application under section 12(2) of the Code, seeking setting aside of the judgment dated 01.04.2015, wherein primary ground was that no opportunity was afforded to the applicant to defend its rights. The applic ation under reference is filed in independent capacity , without associating the auction purchaser , who is indepen dently pursuing remedy against judgment dated 01.04.2015. In order to determine the controversy , issues were framed, and evidence was recorded. It is expedient to reproduce the issues framed, which read as: I. Whether judgment and decree dated 01.04.2015 was a result of fraud and misrepresentation?

II. Whether Qazi Abdul Hameed Advocate was ever engaged by Mr. Muhammad Latif/ applicant in case titled as Mst. Alam Bibi and others v . KASB Bank bearing E.F .A. No.777/2002?

III. Relief".

3. The matter was partly argued on 17.10.2019 and proceedings were adjourned with the direction to learned counsels to provide details of proceeding s pending before the Hon'ble Supreme Court of Pakistan, upon intimation during the course of hearing that auction purchaser (respondent No.14) has independently challenged judgment dated 01.04.2015 by filing appeal before the Hon'ble Supreme Court of Pakistan. In due course, certified copy of order dated 14.11.2019, passed in Civil Appeal No.156-L/2015 titled "Abid Hussain v. Mst. Alam Bibi and others " was received from the office of Deputy Registrar , Supreme Court of Pakistan, which revealed that auction purchaser has withdrawn said appeal. It is expedient to reproduce text of the order , for ease of reference, which reads as; "The instant misc. application for withdra wal of Civil' Appeal is allowed, subject to all just and legal exceptions.

Accordingly , Civil Appeal No.156-L of 2015 is dismissed as having been withdrawn."

4. Learned counsel for the applicant emphasized that auction was set-aside without affording any opportunity to the applicant, whose interest, being subsequent transferee for consideration, was adversely affected upon setting aside of auction sale. Submits that, sufficient evidence was produced to establish that no instructions were conveyed to the advocate, claimed to have represented the applicant, or any Wakalat-Nama signed in this behalf.

Learned counsel referred to judgments reported as Muhammad Younus Khan and 12 othe rs v. Government of N. W.F.P. through Secretary , Forest and Agriculture, Peshawar and others (1993 SCMR 618), Mir Wali Khan and another v. Manager , Agricultural Development Bank of Pakistan, Muzaf fargarh and another (PLD 2003 Supreme Court 500), Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR 236), Imtiaz Ahmed v. Additional District Judge and 14 others (PLD 2012 Lahore 240), United Bank Limited v. Messrs Exim International and 7 others (2012 CLD 471), Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419 ), National Bank of Pakistan and 117 others v.

SAF Textile Mills Ltd. and another (PLD 2014 Supreme Court 283), Mst. Marryam Bibi v. Mst. Murad Bibi and 7 others (2018 MLD 984), and The Punjab Cooperatives Board for Liquidation v. Dr. Nazir Saeed and others (2019 MLD 201 ).

5. Arguments heard. Available record perused.

6. The questions required to be adjudicated are that whether the interest of the applicant and auction purchaser in the property is overlapping or mutually exclusive, and whether auction purchaser or subsequent transferee, as the case may be, can invoke independent/separate remedies, while impugning judgment dated 01.04.2015, one by filing appeal before Hon'ble Supreme Court of Pakistan and other through application under section 12(2) of the Code, and lastly the effect and implications of filing of appeal by the auction ' purchaser and its withdrawal, simplicitor , qua the maintainability of instant application.

7. The sole basis of filing application was denial of opportunity to the applicant to defend the auction sale, independent and exclusive of the remedie s available and invoked by the auction purchaser . The question has to be examined in the context of a relevant and admitted fact that the transaction of sale, inter se the applicant and auction purchaser , was conducted during the pendency of the appeal, i.e. EFA No.777/2002. The principle of lis pendens, in terms of section 52 of the Transfer of Property Act, 1882, is attracted to this case. No independent right in the property can be claimed or confer red on the subsequent transferee, A independent or exclusive from the alleged rights of the auction purchaser , when auction sale was set aside. The interest of the auction purchaser and subsequent transferee is common, inseparable and applicant is not legally entitled to raise or maintain an action independent of the auction purchaser , which reasoning finds support from the ratio A deducible from the decisions in the cases of Khalid M. Ishaque, Ex-Advocate-Gene ral, Lahore v. The Hon'ble Chief Justice and The Judges of the High Court of West Pakistan, Lahore (PLD 1966 Supreme Court 328), Mukhtar Baig and others v. Sardar Baig and others (2000 SCMR 45), Muhammad Mubeen v. Messrs Long Life Builders and others (PLD 2006 Karachi 278) and Muhammad Sharif Butt and others v. Muhammad Asif Bhatti and others (PLD 2011 Supreme Court 905 at page 915). It is expedient to reproduce relevant portion from the case Muhammad Sharif Butt (supra), which reads as:- "In any case, as mentioned above, the appellants would not acquire any independent right to challenge the said decree even on the score of being the bona fide purchaser , because the provisions of section 52 ibid are not subservient to section 41 of the Transfer of Property Act or section 27(b) of the Specific Relief Act or the general."

Relevant portion from the case reported as Mukhtar Baig (supra) is reproduced as; - "7. We are afraid, the contention in the facts and circumstances of this case is not tenable for he purchased the house during the pendency of the sit and the rule of lis pendens is applicable to him. In such a case, he was not entitled to defend the suit independently from Sardar Baig through whom he claimed ownership rights during the pendency of the suit and the findings recorded against Sardar Baig and the judgment delivered against him would be binding on respondent No.2 in the same manner and to the same extent as it was binding on Sardar Baig."

8. The applicant cannot seek determinatio n or re-determination of alleged rights in the property through application under section 12(2) of B the Code when the rights of unsuccessful auction purchas er, accruing out of auction sale, were held inef fective and unenforceable.

9. This case has another peculiar feature, which is that auction purchaser voluntarily withdrew appeal filed against judgment dated 01.04.2015, whereby auction sale was set aside. The withdrawal of pending Civil Appeal by the auction purchaser , otherwise constitute acquiescence, acknowledgement and acceptance of the order dated 01.04.2015, through which' auction sale was set-aside. The finality extended to the order dated 01.04.2015 upon withdrawal of Civil Appeal cannot be disturbed, merely upon application of subs equent transferee, who invoked remedy under section 12(2) of the Code. The submission regarding denial of opportunity to defend the auction sale, in independent capacity , is misconceived. The auction purchaser had availed the remedy by way of appeal against order of setting-aside auction sale. It is a trite law that application under section 12(2) of the Code is not a substitute for the remedy of appeal, which principle was reaffirmed in the case of Happy Family Associate through Chief Executive v . Messrs Pakistan International T rading Company (PLD 2006 Supreme Court 226).

10. It is summed up that the applicant, transferee from the auction purchaser , cannot quarantine itself from the effect and legal implications of section 52 of Transfer of Property Act, 1882 and the consequences of withdrawal of appeal, simplicitor . No independent right the property can be claimed by the applicant, transferee pendente-lite, separate and independent of alleged right of the auction purchaser , which alleged right was dismissed in terms of judgment dated 01.04.2015. The judgments referred by learned counsel for the applicant are distinguishable and not applicable to the facts of this case. The issue at hand is not regarding validity of auction sale or determination of question with respect to purported representation made on behalf of the applicant or otherwise but maintainability of this application in view of the principle of lis-pendens and effect of withdrawal of appeal. Nothing has been pleaded or said that request for withdrawal of appeal before the Hon'ble Supreme Court of Pakistan by the auction purchaser was result of any malice or otherwise collusive.

11. In view of the above, it is held that the applicant lacked entitlement / locus standi to maintain instant application and to contest order of setting aside of auction sale in independent capacity , independently of the auction purchaser .

12. Instant application is incompetent, not maintainable in law and same is, therefore, dismissed.