Mst. FARIDA vs Mst. SANJIDA and others

ORDER

1. ' KAMAL MANSUR ALAM, J.---In 1979 the owners of Plot bearing No, S.B.2/76, D' Cruz Lane, Saddar, Karachi, measuring 343 sq. Yadrs, got it divided into two plots one of the new plots retained the old No,S.B. 2/76, while the other was renumbered as S.B. 2/76/1, and while the former, measuring 210 sq.

2. Yards was mutated in the name of Mst. Rehana, the latter was mutated in the name of her brother Talib Ali. Mst. Rehana sold her plot to one Mst. Sanjida Begum, respondent No,1, on 12-12-1979 who ' constructed a building thereon comprising four shops on the ground floor and ten residential flats on the upper floors. By agreement to sell dated 21-11-1983 respondent No,1 agreed to sell the said property to the petitioner for a sum of Rs,1,75,000 and received Rs,50,000 as part payment. On payment of the balance sale consideration, respondent No,1 conveyed the property to the petitioner by registered conveyance deed dated 19-2-1986, whose name was consequently mutated in the record of rights and she started collecting rent from the tenants of the said building.

3. It appears that Talib Ali (respondent No,2), the owner of the adjoining plot S.B. 2/76/1, filed Suit No,1800 of 1979 on 5-5-1979 against respondent No,1 for recovery of Rs,20,000 on account of damage caused to a portion of his building, which suit was decreed ex parte on 15-5-1982. The decree-holder filed Execution Application No,24 of 1983 and resultantly on the order of the Court the said property was put to auction wherein the respondent No,3, who happens to be the wife of Talib Ali, the decree-holder, is said to have offered the highest bid of Rs,1,28,000 and accordingly the sale in her favour was confirmed on 5-10-1992. However, the same was recalled by the executing Court on 23-1-1993. The respondent No,3 challenged the said order dated 23-1-1993 in the High Court of Sindh in Civil Revision No,46 of 1993, which was accepted by the impugned order and the said order dated 23-1-1993 was set aside.

4. ' It is, inter alia, contended by the learned counsel for the petitioner that the entire sale of the said building to the respondent No,3 was collusive and surreptitiously engineered by the husband of respondent No,3. He submits that the petitioner was a bona fide purchaser for valuable consideration without notice of any litigation and that though her name had been duly mutated in the record, she was designedly kept in the dark about all Court proceedings and the subsequent sale of the said property through Court. The council also disputes the allegation that at the time the property was purchased by the petitioner, the same was under attachment. It is stated that the petitioner came to know of the auction/ sale of the building only through a legal notice dated 6-1- 1993 from the advocate of the respondent No,3 addressed to the tenants of the said building and thereupon she immediately moved an application under section 12(2), C.P.C. In the trial Court, which is still pending, but, says that now with the impugned judgment in the field, the said application, for all intents and purposes, would be rendered infructuous. Challenge is also made to the procedure followed for the auction of the property; it is pointed out that the provisions of rule 66 of Order 21, C.P.C. Were not complied with and even the property 'was not correctly specified in the proclamation of sale. It is thus stressed that by clever maneuvering the respondents Nos.2 and 3 are trying to deprive the petitioner of her property, which is worth more than Rs,30,00,000, for a paltry sum of Rs,1,28,000 ' Leave is granted to examine the contentions raised. The order directing the maintenance of status quo will continue till the disposal of the appeal. The trial Court, in the meanwhile, will proceed with the petitioner's application under section 12(2), C.P.C. Pending before it without being influenced by any observation made or finding given in the impugned judgment dated 2-11-1998 of the learned Judge of the High Court of Sindh.