2005 PLP 1468 (CLD)

Judgment dated 19-6-2004 by which the Banking Court-I, Lahore dismissed the objection petition filed by the appellant has been assailed through this appeal whereas the same judgment has been assailed by the decree-holder bank through E.F.A. No.313 of 2004. Both these appeals have been heard together and will stand disposed of through this common judgment.

2. The learned counsel for the parties have been heard. Assailing the judgment of the learned Banking Court, it is contended by the learned counsel that the appellant has been knocked out merely for the reason that he was lodging his claim on the basis of an agreement to sell and that he had no registered sale-deed and, therefore, had no right in the property. It is contended that the appellant was unaware of any encumbrance attached to the .property, who acted bona fidely.

3. The material brought on the record has been considered. The statement of facts in the memo. of appeal shows that in execution of decree dated 3-4-1983, the mortgaged property was put to auction on 19-4-2003 in which respondent No.2 gave the highest bid and the same was confirmed on 20-6-2003. A Certificate of sale then was issued on 5-7-2003. Claiming an agreement to sell dated 9-10-2000/4-12-2000, the objection petition was filed by the appellant on 16-7-2003 which as mentioned above was dismissed by the learned Banking Court on 19-6-2004. Mere assertion of right on the basis of agreement to sell (even the copy whereof has not been brought on record), did not furnish adequate basis and locus standi to the appellant to claim any indefeasible right in the property. The property in dispute was mortgaged with the creditor bank, who had even obtained a decree against the judgment-debtor, the erstwhile owner of the property. There is nothing on the record that original title documents of the property were either claimed/inspected by the appellant before entering into any such agreement. Even the agreements are claimed to have been executed by Malik Tasawar Hussain and Rana Muhammad Usman. How and when they acquired any interest in the disputed property is not explained. It may also be of significance that the judgment-debtor has not come forward to raise objection to the sale by auction. Suffice it to observe that a Court sale can never attain finality, if the same are allowed to be assailed and annulled on such flimsy claims. Any judgment-debtor can induce anyone to enter into an agreement to sell in order to frustrate the decree or the sale conducted in execution thereof. In Hudaybia Textile Mills Ltd. and others v. Allied Bank of Pakistan Ltd. PLD 1987 SC 512 such aspects were considered and sale upheld. The reliance of the learned counsel for the appellant upon Shaukat Ali Mian v. Trust Leasing Corporation Ltd. through Chief Executive and 4 others 2002 CLD 1071 is inapt inasmuch as that in view of the material in that case it was found that some investigation was required into the claim of the objector and the case was remanded for that purposes to the Banking Court. It is not, however, so in the instant case as no such grievance has been made in the memorandum of appeal that the appellant was not afforded opportunity to establish his claim. It is not the case of the appellant that he wanted to produce any evidence or further investigation was required in the matter, which was declined by the Court. The appellant in the circumstances cannot be regarded as bona fide purchaser of the property and objection petition has rightly been dismissed.

4. It has been directed by the learned Banking Court that the amount that was deposited by the appellant on Court's order should be returned along with mark-up. It is that part of the judgment which has been assailed by the decree-holder Bank in E.F.A. No.313 of 2004. Since the amount so deposited by the objector was made use of by the decree-holder Bank, a just and equitable order was passed by the learned Banking Court for the return of the same with mark-up with which we find no fault. Accordingly we find no valid basis to interfere with the judgment of learned Banking Court. As a result, both these appeals are dismissed. S.A.K./M-955/L Appeals dismissed.