2005 PLP 1508 (CLD)

MIAN SAQIB NISAR, J.

The appellant-Bank obtained a decree from the learned Banking Court, Peshawar, against the respondent No.1, the borrower/customer and respondent No.2, the mortgager, of the property bearing Plots Nos.910 and 911, situate in Nizam Block, Allama Iqbal Town, Lahore, which she admittedly had provided as security for the finance to the Bank; the Bank applied for the execution and the satisfaction of the decree, which was transferred to the Banking Court, Lahore, through the sale of aforesaid property, which was situate at Lahore; when respondents Nos.3 and 4, filed objections claiming that they had purchased the property from Mst. Saeeda Bano/respondent No.2, through registered sale-deed dated 1-2-2004, after verifying from the record of the L.D.A., the Sub-Registrar Lahore, that there was no encumbrance/charge over the said property, resultantly, the respondents/objectors are the bona fide purchasers and therefore, the mortgaged property, cannot be sold in execution of the decree; this objection petition has been accepted by the learned Banking Court through the impugned order dated 9-10-2003. Hence this E.F.A.

2. Learned counsel for the appellant contends that no protection of bona fide purchaser was available to respondents Nos.3 and 4. as the provisions of section 41 of the Transfer of Property Act, are inapplicable to the cases of the mortgages; besides, respondents Nos.3 and 4, are not the bona fide purchasers for the reason that the property had been mortgaged with the appellant through the deposit of the title documents and consequently, having not inquired into, as to where those documents are, the purchasers had bought the property with the risk of the encumbrance upon the property, which was affected prior thereto. It is also submitted that the L.D.A., under the Act XXX of 1975, had no authority to grant any NOC or there was no requirement under the above law, any rules framed thereunder of any other law that the equitable mortgage should have been got incorporated in the record of the L.D.A. or the Sub-Registrar office at Lahore. The record of the L.D.A., was absolutely irrelevant for the sale/purchase of the said property, which could be independently and legally effected through the modes of transfer provided in the Transfer of Property Act, read with the Registration Act. On account of above, it is reiterated that the order impugned before this Court, is absolutely illegal and unlawful.

3. Learned counsel for the respondents has supported the impugned judgment and decree and submits that the principle of equity vis-a-vis the bona fide purchaser, are applicable to the case in hand and the protection was available to the respondents, if not under section 41, but under the general law; he further states that best endeavours were made by the respondents Nos.3 and 4, before buying the property to ascertain about any clog or encumbrance, charge of the property and in this regard, the most important and relevant record was of the L.D.A. and the Sub-Registrar, from where the verification was obtained. And it is only on the clearance of these two authorities, the property was purchased.

4. Heard. We find that according to the provisions of Order XXI, rule 103, C.P.C., all questions as to the title, right and the interest, etc. in the immovable property between the decree-holder and the opposite party, should be adjudged and determined by the Executing Court and the suit in this behalf, has been barred. This means that if there is any question of fact, which is involved in the matter, should be resolved though by the Executing Court but in the manner as being the subject-matter of the suit. In this case, legal questions, whether the defence of bona fide purchaser is at all applicable to the objector/respondents; if so, whether they in fact are the bona fide purchasers, particularly, in the situation, when they did not obtain the order inquiring about the original title documents, were the questions, which needed resolution by the Court below; however, the learned Court has not adverted to these aspects of the matter and has passed the impugned order only on the basis of some verification by the L.D.A., etc. This to our mind, was insufficient to give the benefit of bona fide purchase, if it was otherwise available to the respondent under the law. Therefore, we find that the learned Court below has disposed of the matter in the manner not permissible under the law, which order should be set aside and the case be remanded to the Court below for decision after framing of the issues and recording of the evidence. Before parting, we may like to observe that any observation made in this judgment, shall not prejudice either of the parties at the time of the decision of the matter by the Court below. In the light of above, this appeal is allowed; the impugned order is set aside and the matter is remanded to the learned Banking Court to decide the same after framing of the issues and recording of the evidence. M.H./S-377/L Case remanded.