Apr
07

In The High Court Of Sindh, Karachi

According to learned counsel, this is a case where probate has been issued in favour of the legal heirs of Nazir Ahmed, who was owner of the subject suit property on the basis of sale agreement, receipt of the total amount of consideration, original document of title and peaceful possession of the suit property. Quick House Sale London The appellants have inherited of the rights and encumbrances in the subject property by virtue of law of inheritance duly recognized and confirmed by this Court while issuing Letter of Administration in favour of the appellants in respect of such property. Learned counsel further states that in view of herein above facts the appellants are entitled to get the subject suit property duly transferred/mutated in their names by the concerned department, who inspite of Letter of Administration issued by the Hon’ble Court in favour of the appellants refused to do so on the pretext of getting a specific order/decree from the Court. Learned counsel for the appellants has argued that the impugned order is based on misinterpretation of the provisions of Article 113 of the Limitation Act. According to learned counsel, the provisions of Article 113 are attracted when either date fixed for the performance expires or when the plaintiff has noticed that performance is refused, three years period of limitation is provided under the circumstances. Whereas in the instant case, as per learned counsel for the appellants, neither there is any fixed date for the performance nor there is any refusal on the part of either party.

The High Court Of Sindh, Karachi

In the instant case the respondent No.1, namely, Moulana Muhammad Bilal Somayri, who was the owner of the lease hold residential plot bearing No. In the above case in the Sale Agreement no period for executing the Transfer Deed is fixed and in para 3 of the Sale Agreement the Seller under took to execute deed or sign any document whenever required for finalization of sale and transfer of the suit property and at any later stage from execution and signing of the agreement of sale and full cooperate with the Vendee in the transfer/mutation of the suit property in all respect. That in the above matter the Seller never refused to transfer the property and after the death of Appellants/Appellant/Petitioner’s father and husband applied for Letter of Administration including the above property which was granted by Hon’ble High Court and as such the Appellant/Appellant/Petitioners applied for mutation of the property in the concerned department, the department demanded specific order by the Court. Therefore, the Appellants/Appellant/Petitioners tried their best to find out the Respondents on their available addresses and then the above suit is filed as such there is no bar of limitation and suit is within time. That the Appellate Court failed to consider the judgment referred by the Appellant where it has been defined when Suit for Specific Performance was filed after the period of Years where the Seller has not refused to performance of contract and where no time is fixed for performance of contract. The date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused.

The High Court Of Sindh, Karachi

That learned trial Court and as well as appellate Court failed to determine that suit for filing the specific performance of contract is not three years but as per Article 113 of Limitation Act, 1908, which is applicable in the above matter is reproduced hereunder for ready reference.

The High Court Of Sindh, Karachi

Moreover the matter is non-contentious, there are no claimants except the present appellants, of the subject property hence there seems no impediment of suit is directed in favour of appellants. Accordingly, fast house sale London the impugned judgment and decree passed by both the Courts below are set aide. Learned counsel further argues that since in the instant case none of the eventuality as visualized in terms of Article 113 is attracted, therefore, both the Courts below have erred in law by placing reliance on Article 113 of the Limitation Ac t.

I have heard the arguments, perused the record and examined the provisions of Article 113 as well the case law relied upon by the learned counsel for the appellants. I am of the opinion that in view of the facts and circumstances of this case, provisions of Article 113 of Limitation Act, are not attracted as none of the eventuality as visualized in such article is available in the instant case. The appellants have acquired lawful right in the subject property on the basis of sale agreement, receipt of the full amount towards sale consideration undisputed continuous physical possession of the suit property and original documents of title since 1996 as well as the registered Irrevocable General Sub-Power of Attorney with the right to sale i.e. agent’s authority coupled with interest in the agency.