2003 PLP 868 (CLD)

3. Learned counsel for respondents Nos.2, 3, 6, 7 and 8 submit that dispute is between the appellant and respondent No.1. Learned counsel of respondent No.1 submits that application was filed before the executing Court by the appellant mala fide, Therefore, executing Court was justified to dismiss the application in view of the mandatory provisions of section 15(8) read with explanation. She further submits that executing Court rightly rejected , the application as the rent deed was not registered deed in favour of the appellant by the original owner. She further submits that appellant did not prove on record that appellant had paid advance rent to respondent No.4. She further submits that- appellant is wife of judgment-debtor Muhammad Afzal Chughtai and sister-in- law of respondent No.4. Respondents Nos.4 and 7 are also judgment-debtors alongwith respondent No.2. Learned counsel of the appellant denied the relationship of the appellant with the judgment-debtors. The executing Court summoned the appellant and she stated before the executing Court that she is wife of respondent No.7. She further submits that appellant failed to prove that appellant is a bona fide tenant of the property in question.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves.

5. It is better and appropriate to reproduce relevant provision of the aforesaid Ordinance to resolve the controversy between the parties:-- Section 15(6). Whether the mortgagor or his agent or servant or any person put in possession by the mortgagor or on account of the mortgagor does not voluntarily give possession of the mortgaged property sought to be sold or sought to be purchased or purchased by the financial institution, a Banking Court on application of the financial institution or purchaser shall put the financial institution or purchaser, as the case may be, in possession of the mortgaged property in any manner deemed fit by it: Provided that the Banking Court may not order eviction of a person who is in occupation of the mortgaged property or any part thereof under a bona fide lease, except on expiry of the period of the lease, or on payment of such compensation as may be agreed between the parties or as may be determined to be reasonably by the Banking Court. Explanation.

(1) Where the lease is created after the date of the mortgage and it appears to the Banking Court that the lease was created so as to adversely affect the value of the mortgaged property or to prejudice the rights and remedies of the financial institution, it shall be presumed that the lease is not bona fide, unless proved otherwise. Section 19(1) ............................................................... (2) The decree of the Banking Court shall be executed in accordance with the, provisions of the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree holder consider appropriate, including recovery as arrears of land revenue. (3) .............................................................................. (4) .............................................................................. (5) .............................................................................. (6) .............................................................................. (7) Notwithstanding anything contained in the Code of Civil procedure, 1908 (Act V of 1908), or any other law for the time being in force

(a) the Banking Court shall follow the summary procedure for purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of filing of the claims or objections. (b) If the claims or objections are found by the Banking Court to be mala fide or filed merely to delay the sale of the property it shall impose a penalty up to twenty per cent. of the sale price of the property. (c) The Banking Court may, in its discretion, proceed with the sale of the mortgaged, or pledged or hypothecated property if, in its opinion the interest of justice so required: Provided that the financial institution gives a written undertaking that in the event the objections are found to be valid, or are sustained, it shall in addition to compensating the aggrieved party by the payment of such amount as may be adjudged by the Banking Court also pay a penalty up to twenty per cent. of the sale proceeds and such amounts shall be recoverable from the financial institution in the same manner as in execution of decrees passed hereunder. It is admitted fact that property in question was mortgaged in favour of respondent No. 1 at the time of sanctioning loan in favour of respondent No.2 in the year 1992. Therefore, executing Court was justified to dismiss the application in view of Explanation (1) read with proviso of section 15(6). It is also admitted fact that appellant and respondents Nos. 2 to 9 are close relatives specially appellant is wife of judgment-debtor respondent No.7 and sister-in-law of respondent No.4. Therefore, the case of the appellant does not fall within the conditions prescribed in the said explanation and proviso. The Legislature has prescribed ingredients qua non-maintainability of the application under section 15(6) in Explanation read with the aforesaid proviso which are as follows:-- (i) Lease deed executed after execution of mortgage. (ii) Duty cast upon Banking Court to see whether the lease was executed to adversely affect the value of mortgaged property or to prejudice the rights and properties of the Financial Institution. (iii) It should be presumed that the lease is not bona fide unless otherwise proved. (iv) Under a bona fide lease. The following facts are also admitted by the appellant that unregistered rent deed was executed after the mortgage for the period from 10-8-1999 to 10-8-2004. There was no proof on the record qua the payment of advance rent for 5 years. The executing Court passed the impugned order after the statement of the appellant and found that appellant did not execute rent deed bona fide. It is pertinent to mention here that meaning of the expression "bona fide" is that an act was done or performed honestly, without fraud, collusion or participation in wrong doing shall be deemed to be bona fide act. The presence of any of these elements may render an act mala fide. In arriving to this conclusion we are fortified by the following judgments:-- (1) Muhammad Younas v. Dr. S. Muzammil Ali 1981 CLC 327, (2) Fakhruddin v. Asad Ullah Shah PLD 1982 Kar. 790, (3) S. Hafeezur Rehman v. Federal Land Commission 1983 CLC 2842, (4) Mukhi Chatromal v. Khupenand 1988 CLC 1711, (5) N.D.F.C. v. Fazal Sugar Mills 1993 CLC 642, (6) A.M. Shahid v. S.A. Bashir 1993 CLC

148. The learned executing Court after applying its independent mind had given finding against the appellant that appellant is not a bona fide tenant which is in accordance with the dictum laid down by the superior Courts in the aforesaid judgments. The executing Court is well within its rights to adopt any procedure at the time of execution of decree in view of section 19(2). Therefore, provisions of C.P.C. are not attracted in stricto senso. In arriving to this conclusion we are fortified by the law laid down by this Court in the following judgments:-- (1) Ghulam Mustafa v. Additional District Judge 1991 CLC 81. (2) Muhammad Amin v. Judge, Family Court, Multan 2001 MLD

52. In case the executing Court invoked subsection (2) of section 19 then section 19(7)(a) is not attracted. It is settled principle of interpretation that section must be read as a whole organic. In case the contention of the learned counsel of the appellant is accepted then subsection (2) of the said section has become redundant. In case the executing Court has adopted procedure prescribed under subsection (7) thereafter executing Court cannot invoke subsection (2) of section 19 as per law laid down by the Honourable Supreme Court in Hudabia Textile Mills v. A.B.L. PLD 1987 SC

512. It is-pertinent to mention here word "bona fide" is mentioned in proviso of section 15(6). It is settled principle of law that a proviso to section has an overriding effect and control over the whole section. Meaning thereby the function of a proviso is to exclude and take out certain cases from the rule to which it is a proviso. In other words to that extent the proviso modifies the main provision of the enactment. In arriving to this I conclusion we are fortified by the following ,judgments:- (1) Muhammad Ashraf Khan v. The State 1990 PCr.LJ 169. (2) Messrs Hamdard Dawakhana v. Commissioner Income-tax PLD 1980 SC

84. It is also settled principle of law that Explanation attached with the section is to enable the Court to understand the Act in the light of the Explanation, as per principle laid down in Balaji Singh v. Chakka Ganamma and another AIR 1927 Mad.

85. In view of what has been discussed above, this appeal has no merit and the same is dismissed. M.B.A./L-54/L Appeal dismissed