2023 SCLR 17

Other citation:

2023 SCMR 1660 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Umar Ata Bandial, Mazhar Alam Khan Miankhel and Jamal Khan Mandokhail, JJ

Qazi Humayun—Petitioner

versus

Mst. Sabiha Qayum and others—Respondents

Civil Petition No. 4779 of 2019, decided on 26th October, 2021.

(On appeal from the judgment/order dated 04.09.2019 of the Peshawar High Court, Peshawar passed in FAB 28-P of 2010)

HEADNOTES

(a) Limitation —

— All objections regarding liability and its discharge come to a close after the lapse of the limitation period. [Para. No. 6]

(b) Civil Procedure Code (V of 1908) —

— Ss. 27 to 32 — Summons and discovery — Scope — Service by publication is a good service even in respect of parties living abroad. [Para. No. 7]

Wasim Sajjad, Senior Advocate Supreme Court and Syed Rifaqat Advocate-on-Record for petitioner.

M. Tariq Javed, Advocate Supreme Court for respondents nos. 1 to 3.

Date of hearing: 26^th October, 2021.

ORDER

Umar Ata Bandial, J. On 20.05.1981 the Special Court (Banking), Peshawar decreed in the amount of Rs. 10.634 million the recovery suit of the respondent No.4 creditor bank against Sarhad Crescent Industries (“Company”), borrower and against Qazi Abdul Qayum (the predecessor of respondents Nos.1 to 3) and his seven siblings who had furnished security for the loans. Appeal filed against the decree by the judgment debtors was unsuccessful before the Peshawar High Court and also this Court.

2.    By order dated 08.06.2000 passed by this Court a compromise was recorded between the respondent No.4 creditor Bank with the Company along with its sponsors judgment debtors. Under the terms of the compromise Rs.5.5/- million was determined to be payable by the judgment debtors to the decree holder Bank. The said sum was to be realized by the sale of family owned mortgaged property bearing property No. 134, Sunehri Masjid Road, Peshawar Cantt. The judgment debtor Qazi Abdul Qayum who is the predecessor of respondents Nos.1 to 3 was proceeded against ex-parte by this Court. He had a 2/9 shares in the mortgaged property. Paragraph 2 of the compromise directed the sale of his share by public auction. In this respect, paragraphs 2 to 5 of the compromise are reproduced below:

“2. that for realizing funds for the satisfaction of the decree in the agreed sum, the 2/9th share of Qazi Abdul Qayum, the judgment debtor and the former Managing Director of the company in the property No.134 Sunehri Masjid Road Peshawar Cantt shall be sold through Court and the amount so realized shall be adjusted towards the satisfaction of the claim of National Bank of Pakistan in sum of Rs.5.50 Million.

3. that in case notwithstanding the sale any sum remains outstanding after adjustment of sale proceeds of 2/9 share of Qazi Abdul Qayum in Banglow No.134 Sunehri Masjid Road Peshawar Cantt., the same shall be paid by rest of the respondents in lump sum to the National Bank of Pakistan towards the liquidation of the debt aforesaid.

4. that the respondents or any of them, shall have the right to bid jointly or individually for the purchase of 2/9th share of Qazi Abdul Qayum in Banglow No.134 Sunehri Masjid Road Peshawar Cantt. In case their/his bid is accepted by the Court, they/he shall be entitled to the sale certificate to be issued by the Court in their/his name(s).

5. that on adjustment of the dues of the National Bank of Pakistan in sum of Rs.5.50 million, the properties mortgaged with the National Bank of Pakistan shall stands redeemed and the respondents entitled to receive back the security documents held by the bank.”

3.    The auction of the 2/9 share of Qazi Abdul Qayum in the mortgaged property held by Banking Court was participated by six persons. The highest bid at a price of Rs 1.5 million was made by the petitioner who was one of the judgment debtors. On 02.01 2001 the sale of the said 2/9 share of Qazi Abdul Qayum in the mortgaged property was confirmed in favour of the petitioner. On 14.03.2001 the Manager of the decree holder Bank made a statement in Court that the amount of Rs 4/- million had been jointly deposited by the judgment debtors with the Bank and that the compromise amount of Rs.5.50 million had been duly paid and discharged by the judgment debtors. Accordingly, the claim of the decree holder Bank under the compromise decree awarded by this Court on 08.06.2000 was fully satisfied.

4.    Qazi Abdul Qayum was alive at the time of the compromise decree as well as the finalization of the sale of his share in the mortgaged property. He did not challenge any of the actions taken in the proceedings leading to the decree and its realization in favour of the respondent decree holder Bank until his death on 08.10.2006. However, on 08.12.2007 his heirs, namely, respondents Nos.1 to 3 filed an application under Order XXI, Rule 90 of the C.P.C. alleging fraud in the passing of the decree and the sale carried out thereunder. The grounds of the said application are given below:

“(b) That the compromise effected before the august Supreme Court of Pakistan dated 08.06.2000 between respondents Nos.1 and 2 is ineffective upon the rights of the petitioners as the late Qazi Abdul Qayum who was residing at USA since 1979, was neither signatory to the compromise nor had given any power of attorney to respondent No.2 to effect any compromise on his behalf before the august Supreme Court of Pakistan. As such all the actions of respondents are mala fide with the intention to get transfer the share of Qazi Abdul Qayum in the property fraudulently.

(c) That the entire execution proceedings which culminated into sale of 2/9 share of Qazi Abdul Qayum are pregnant with material irregularities, illegalities and practicing fraud upon the executing Court.

(d) That no statutory notice of execution and sale have ever been issued against the late Qazi Abdul Qayum in due course of law hence the entire proceedings have become invalid and void.”

5.    This application was rejected by the learned Banking Court 03.07.2008. On appeal the learned High Court has by the impugned judgment dated 04.09.2019 set aside the said judgment of the Banking Court and remanded the matter for fresh decision after recording of evidence of the parties. The impugned judgment of the High Court is assailed on the ground that the auction conducted by the Banking Court was disputed by the respondents Nos.1. to 3 to the extent of the value and sale of the share of their predecessor in the mortgaged property. The said respondents objected to the consent decree dated 08.06.2000 passed by this Court in the absence of their predecessor in interest.

6.    Whereas the respondents Nos.1 to 3 disputed the compromise decree they brought no grievance against it before this Court. Moreover, the respondents’ objections fail to disclose particulars of any fraud, illegality or irregularity alleged against the co-judgments debtors one of whom is the petitioner before us. The matter pertains to a decree passed in 1981 and satisfied in 2001 by sale of the shares of all nine co-owners of the mortgaged property accomplished through their compromise with the decree holder Bank. The predecessor of the respondents Nos.1 to 3 never challenged the decree nor the execution of the decree during his lifetime. He was aware of the proceedings because he was the Managing Director of the Company that had committed default in repayment of loans to the respondent decree holder Bank. The decree was ultimately settled through contribution by all the judgment debtors, namely, the nine co-owners of the mortgaged property sold under the decree to settle the liability of the judgment debtor company. The respondents Nos. 1 to 3 and their predecessor waited for six years to challenge in 2007 the sale of the mortgaged property effected in 2001. No explanation for the delay occasioned has been given by the respondents Nos.1 to 3. The claim that the MEO has informed the respondents Nos.1 to 3 about the title to their share claimed by auction purchaser in the mortgaged property is inconsequential for the simple reason that since 1978 they had abandoned their business interests in Pakistan and there is no basis for them now to be claiming the rights and relation to the jointly owned mortgaged property which was primary security for the defaulted loans availed by their family business, namely, the judgment debtor company. It is the requirement of law that all objections regarding liability and its discharge come to a close after the lapse of the limitation period. In the present case, neither the consent judgment of this Court dated 08.06.2000 nor the finalization of the execution proceedings by the judicial sale of the share of the predecessor of the respondents Nos. 1 to 3 dated 02.01.2001 were challenged before the competent Court. The respondents Nos.1 to 3 belatedly approached the executing Court in 2007 to incompetently dispute the consent decree passed by this Court in the year 2000 before the wrong forum. In any event, the said objections fail to disclose any fraud committed by the other judgment debtors including the petitioner and decree holder Bank.

7.    The application under Order XXI, Rule 90, C.P.C. filed by the respondents Nos. 1 to 3 mainly alleges the failure to serve notice on them at each stage of the proceedings. In fact notices were repeatedly issued to the respondents and were also published in the newspapers. Their admitted absence from Pakistan and even their present continued residence abroad is the main reason why if at all the notices could not be served on them personally. Under the law service by publication is a good service even in respect of parties living abroad. Reliance was placed on Lilaram v. Ghulam Ali (1991 SCMR 932), Mir Wali Khan v. Manager, ADBP (PLD 2003 SC 500) and Muhammad Attique v. Jami Limited (PLD 2010 SC 993).

8.    Consequently, we do not find any merit in the contentions raised by the learned counsel for the respondents Nos. 1 to 3. As a result this petition is converted into appeal and allowed.

Appeal allowed