2007 PLP 875 (CLD)

SYED ZAHID HUSSAIN, J.

Objection petition filed by the appellant under Order XXI, rule 58 of the Code of Civil Procedure, 1908 was dismissed by the learned Banking Court on 28-2-2002 qua which this appeal has been preferred.

2. The record pertaining to the execution wherein the objection petition was filed is available, which has been perused. The learned counsel have been heard at length.

3. The dispute concerns with House No.8, Street No.71 F-8/3 Islamabad, hereinafter referred to as the disputed property. It belonged to one Sh. Muhammad Waris who had mortgaged the same with Citibank Limited as security for availing some finance facility. As a result of some arrangement (agreement/Power of Attorney) between him and one Naeem Ahmad the latter had to discharge the liability by making payment to Citibank. A sum of Rs.39,03,500 is said to have been paid by Naeem Ahmad to the Citibank. Since the entire liability of Citibank was not paid by Naeem Ahmad, he further made alike arrangement with the appellant for clearance of the liability by making payment to the Citibank. The appellant is said to have obtained possession, cleared the entire liability of Citibank, and was issued 'a certificate as to clearance of the liability and original documents were also released to him. This was around 26/29-11-2001. The appellant claims to be in possession of the house as also the original documents.

4. The other limb of this litigation is that the Bank of Khyber i.e. respondent herein had filed a suit for recovery against Messrs Mahboob Corporation and others including Sh., Muhammad Waris its Managing Director qua the liability of Rs.2,52,02,

549. In that ex parte decree dated 19-10-2000 was passed by the Banking Court Rawalpindi/Islamabad observing that the decretal amount shall be recovered through "sale of mortgaged property and other lawful means". The mortgaged property in that case did not include the disputed property. The execution proceedings qua the said decree were going on when it was reported to the Court that despite proclamations for the auction of the mortgaged property none had turned up to take part in the auction and the Court Auctioneer remained unsuccessful in selling the same. Such a report was made by the Court Auctioneer on 21-9-2001. The decree-holder Bank thus applied to the Court for attachment of House No.8, Street No.71 F-8/3 .Islamabad (the disputed property) as is evident from the order of the Court dated 21-12-2001. From the said order it is evident that on the same date the objection petition filed by the appellant under Order XXI, rule 58 of C.P.C. was taken up by the Court. On that date, the Court adjourned the proceedings to 17-1-2002 for reply to the objection petition making a restraint order and ordering maintenance of status quo. After receiving reply to the objection petition the Court proceeded to dismiss the same vide the impugned order.

5. The learned counsel cities Shaukat Ali Mian v. Trust Leasing Corporation Ltd. through Chief Executive and 4 others 2002 CLD 1071, Mirza Naseem Ahmad and 4 others v. Dr. Sadiqa Sharif and 12 others 2003 CLD 88, Muhammad Saleem v. Allied Bank of Pakistan and 12 others 2003 CLD 280 and Fazla v. Mehr Din and 2 others 1997 SCMR 837, in support of his contention that in a case of the nature the Court was obliged to make proper investigation as to the claim of the appellant and the objection petition could not have been dismissed summarily without framing issues or providing opportunity to substantiate his claim. The learned counsel for the respondent has on instruction stated that in the meanwhile, the property mortgaged with the decree-holder Bank has been sold but still substantial part of the decree remain unsatisfied. According to him, the house belonged to Sh. Muhammad Warts one of the judgment-debtors which could be attached for satisfaction of the decree.

6. On consideration of the matter, we find that Messrs Mahboob Corporation and others had mortgaged two other properties with the Bank of Khyber and not the disputed property. They appeared to be conscious of this fact as while passing the decree on 19-10-2000 it had been ordered by the Banking Court that "the decretal amount shall be recovered through execution of decree, by sale of mortgaged property and all other lawful" means." It was thus that the execution proceedings were taken out by the respondent/decree-holder for attachment/sale of mortgaged property through auction. There is no dispute that House No.8, Street No.71 F-8/3 Islamabad was not such a mortgaged property. It could not be so because it had been mortgaged with Citibank, which according to the appellant was redeemed on clearance of liability by him. All such transactions as is evident from the above sequential events took place even prior to the purported attachment of the disputed property by the Banking Court. Another aspect, which has been brought to our notice, is that Naeem Ahmad had filed a suit for Specific Performance qua the disputed property in which the respondent-Bank applied for being impleaded as party but the application was dismissed and eventually a decree was passed in favour of Naeem Ahmad, which statedly was not challenged and has attained finality. It was a controversy of the nature, which required proper investigation. as to the claim of the appellant and proper determination could be made only by framing proper issues, enabling the parties to lead evidence in support of their respective stances. Summary dismissal of the objection petition in the peculiar facts and circumstances was not warranted. Such a dismissal of the objection petition is unsustainable in law; the order is accordingly set aside. In view of the above, the appeal is accepted, as a consequence whereof the objection petition filed by the appellant would be deemed pending which need to be tried and decided in accordance with law by the Banking Court before whom the parties will appear on 17-3-2007 for further proceedings in the matter. No order as to costs. M.H./H-14/L Case remanded.