Law: Specific Relief Act, 1877

Section: 42

Law: Civil Procedure Code (V of 1908)

Section: 11

Law: Transfer of Property Act, 1882

Section: 60,67

Specific Relief Act (I of 1877)--- ----S.42---Transfer of Property Act (IV of 1882), Ss.60 & 67---Civil Procedure Code (V of 1908), S.11---Mortgage---Foreclosure, right of---Alternate relief---Effect---Principle of res judicata---Applicability---Mortgagor sought declaration of title on the ground that mortgage deed was executed without consideration just to secure certain business transaction, hence it could not be executed---On the contrary mortgagees also filed a suit For foreclosure of mortgaged property on the ground that mortgagor had failed to return mortgaged money after due date---Both the suits were dismissed by Trial Court but Appellate Court allowed the appeal of mortgagees and decreed their suit---Plea raised by mortgagor was that suit filed by mortgagees was not maintainable as principle of res judicata was applicable to their suit---Validity---Nothing was available on record to ascertain, if issues involved in appeal filed by mortgagor were directly and substantially in issue in his suit---No comparison could be made within the contemplation of S.11, C.P.C---Mortgagor never accepted mortgage deed to be a valid document, rather he challenged same mainly for lack of consideration, which he was not able to prove---Suit filed by mortgagor was not for redemption of the property within the purview of S.60 of Transfer of Property. Act, 1882---Mortgagor never offered to make payment or tendered mortgage money before or after due date---Mortgagees brought the suit for foreclosure after due date, which squarely met the condition of S.67 of Transfer of Property Act, 1882---Addition of alternate relief by mortgagees in their suit did not mean that right of foreclosure would be prejudiced in any manner---High Court declined to interfere with the and decree passed by Appellate Court---Second appeal was dismissed. Mureed Khan, v. Muhammad Khan and 2 others PLD 1971 Pesh. 28 and Suleman and 3 others v. Custodian, Evacuee Property, West Pakistan, Lahore and 2 others PLD 1971 Lah. 77 distinguished. THIS JUDGMENT DELIVERED BY: MIAN SAQIB NISAR, J.--- The dispute between the parties relates to a House bearing No. 468/A with the land underneath measuring 13…

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