Law:

Section:

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)------Ss. 9 & 15---Transfer of Property Act (IV of 1882), Ss.79 & 58---Constitution of Pakistan (1973), Art.199---.Constitutional petition---Suit for recovery of loan---Sale of mortgage property---Mortgage---Waiver/renouncement of---Principles---Property in question was initially mortgaged through registered deed dated 16-3-1986 in favour of petitioner/Bank and said property underwent further mortgage on 16-5-1986, besides four equitable mortgages by deposit of title deeds---Mortgage so created was never terminated by operation of law or through deliberate act of the parties---Termination, if any, had to be proved/established but in the present case there was no evidence with the Banking Court to return any such finding---When a person is possessed of any right, question of its waiver/renouncement had to be proved by evidence and while electing from any of the two interpretations one involving loss of the right and the other preserving of that right, his conduct was to be construed on the basis of preserving his rights---Relinquishment/desertion of mortgagee rights inspite of holding the documents of the property under mortgage and institution of suit for recovery of the advanced finance facility, even though in 1995, would not lead to loss of mortgagee rights---Petitioner-Bank had not issued any N.O.C. in favour of respondents for creation of second mortgage and the petitioner-Bank being not party to said transaction, would not be bound by it---Second mortgage could have been created by the owners, till the time their title in the property become extinct---Provision of S.79, Transfer of Property Act, 1882 had enacted an exception to the rule of priority, making the subsequent/intermediate mortgage as part of the first mortgage, if the advanced amount was within the fixed minimum limit, provided the subsequent/ intermediate mortgagee had the notice of first mortgage---Subsequent mortgage had no notice of mortgage of the petitioner-Bank and as such it could hardly be held that later mortgage was void or had become part of first mortgage under the ordinary law of the land, as…

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