2003 PLP 908 (CLD)

JAWWAD S. KHAWAJA, J.

This appeal impugns the order dated 17-10-2002 passed by the learned Banking Court No.II; Lahore. The facts leading up to the filing of this appeal are straightforward. City Bank (respondent No. 1) filed a suit against Akmal Raza respondent No. 2 and obtained a decree dated 12-1-1997 for the recovery of a sum of Rs.8,73,342 against the said respondent No.2. The respondent City Bank thereafter filed an execution petition to execute the aforesaid decree. In the execution proceedings, the learned Banking Court ordered the auction of House No.281/3/B-1, Township, Lahore, belonging to Akmal Raza respondent/judgment-debtor.

2. The appellant filed an application under Order 21, rule 69, C.P.C. praying that the auction be stopped and she be allowed to deposit the decretal amount on behalf of the judgment-debtor. In her application, the appellant asserted that the respondent/judgment-debtor through his attorney had entered into an agreement to sell the aforesaid property to the appellant and in part performance of the said agreement, possession of the property, together with original documents, was handed over to the appellant. It was further asserted that upon refusal of the respondent/judgment-debtor to convey the property to the appellant, she filed a suit, for specific performance of the said agreement, which is pending adjudication before a competent Civil Court at Lahore. The appellant claims that out of the total consideration of Rs.13.25,000, she has already paid a sum of Rs.10,75,000 as earnest money to the respondent/judgment-debtor through his attorney.

3. The respondent/judgment-debtor resisted the aforesaid application on the ground that no agreement to sell was executed by him or on his behalf in favour of the appellant nor was any amount received from her.

4. It is in these circumstances that, with the object of preserving her interest in the suit property, the aforesaid application under Order 21, rule 69, C.P.C. had been made by the appellant. The learned Banking Court, by means of the impugned order, has dismissed the said application. The sole reason for dismissing the application, given in the impugned order, is that the property is still owned by Akmal Raza respondent/judgment-debtor and the appellant has no title therein. On this basis, it has been held that until the appellant is declared to be owner of the aforesaid property, she has no locus standi to file the aforesaid application.

5. We have heard learned counsel for the appellant and the respondent/judgment-debtor. It is true that legal title in the disputed property has not, as yet, vested in the appellant. This will happen only if she succeeds in her suit and specific performance of the aforesaid agreement dated 20-4-2001 is ordered. However, considering the above facts, it cannot be said that the appellant has no locus standi to file an application under Order 21, Rule 69, C.P.C. If the suit of the appellant is decreed, it will establish that the appellant was entitled to a conveyance of title in her favour as per terms agreed between her and the respondent/judgment-debtor. As a consequence, her right to title will date back to the agreement even though the decree may be passed at a subsequent date.

6. In the present case, the appellant has offered to pay off the outstanding amount to satisfy the decree obtained by the respondent-Bank. The respondent/judgment-debtor cannot have any valid objection if the decretal debt is satisfied and the property is saved from auction. This would be particularly so as the respective rights of the appellant and the respondent/judgment-debtor in respect of the disputed property will remain unaffected and will be decided by the Civil Court, before whom the appellant's suit for specific performance is pending adjudication.

7. Learned counsel for the respondent/judgment-debtor argued that by virtue of section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, any agreement or transfer of mortgaged property after summons have been issued by a Banking Court, is void. On this basis, it was argued that the agreement to sell dated 20-4-2001, relied upon by the appellant, is void. The validity of the agreement, however, is a subject-matter of the suit for specific performance pending before the Civil Court. It is not necessary for us in these proceedings to give any finding on this issue.

8. In view of the above discussion, this appeal is allowed. The above referred property shall not be auctioned if, within 30 days from today, the appellant satisfies the decree dated 12-1-1997 obtained by the respondent-bank. This order, however, shall be without prejudice to the respective rights of the appellant and the respondent/ judgment-debtor in respect of the said property. M.H./N-259/L Appeal allowed.