2005 PLP 378 (CLD)

Rizwan Mushtaq for Respondent. Date of hearing: 17th February, 2004. MIAN SAQIB NISAR, J.‑‑‑The brief facts of the case are that the appellant‑Bank had financed a company, namely, "Messrs Electro Cable Industries, Private Limited". As a security for the repayment of the finance, Malik Muhammad Saeed and his wife Mst. Asmat Saeed (the mortgagees) mortgaged their property bearing No.159‑D, Muslim Town, Lahore in favour of the bank. Subsequently, the Bank brought a suit against the borrower and the guarantors/mortgagees, which was decreed, on 1‑10‑1997. This decree, admittedly, has become final. However, in the execution proceeding, the present respondents who are the daughters of the mortgagers moved an application seeking detachment of the property and its exclusion from the auction on the ground that, in fact, Mst. Asmat Saeed, their mother, had gifted, her share of property in favour of her husband, somewhere in the year, 1989 and subsequently, their late father had transferred the entire property to them by way of gift, which fact is envisaged/acknowledged by document dated 8‑12‑1989, resultantly, they are owners of the property in dispute and same could not be allotted or sold in execution of the decree. This application was allowed by the learned Executing Court through the impugned order.

2. Learned counsel for the appellant has raised two arguments; firstly, that the mortgage in favour of the Bank was created on 4‑7‑1987 and the respondents in this case are claiming the gift in their favour in the year, 1989, thus, in any case, as the mortgage was prior to the gift, same shall be binding upon the respondents who have stepped into the shoes of the mortgagers. Secondly, the learned Courts below should have held an inquiry into the matter to ascertain, if factually any valid gift was made in favour of these respondents, because this was an important factual issue involved in the matter and could not be resolved without enabling the parties to produce evidence.

3. When confronted, learned counsel for the respondents has not been able to meet the objection, that the factum of gift was, undoubtedly, a question of fact which could be proved or disproved after conducting a proper inquiry into the matter, therefore, to this extent, he has no objection if the impugned order is set aside. However, it is stated that in reply to the objections/application of the respondents in paragraph No.3, the appellant has responded as follows:‑‑ "That the property 159‑B, New Muslim Town, Lahore was in the name of Malik Muhammad Saeed (late) and. Mst. Asmat Saeed Malik and after the death of Malik Muhammad Saeed in 1991, his share was transferred to his legal heirs who are also judgment- debtors and mortgaged the same with the bank. In view of the factual background stated above the property namely. 159‑B New Muslim town Lahore is liable to be sold in the titled execution for the satisfaction of the decree. It is specifically denied that the property has never ever gifted to the applicants and still in the name of judgment‑debtors who are occupants of the same. Therefore, the property is liable to be sold and the application under reply is liable to be dismissed." Thus, in view of the above, it is stated that the case of the appellant‑Bank that the property was mortgaged by Malik Muhammad Saeed and Asmat Saeed is contradicted and therefore, in the light of the 'admission the appellant is not permitted to take up the plea that the mortgager was made by the late parents of the respondents. Be that as it may, as we are setting aside the impugned order, thus, the above inconsistency if any, in the written reply of the appellant and the arguments made by Mr. Ali Zafar, Advocate, learned counsel for the appellant today, shall also be kept in view by the learned Banking Court while disposing of the objections/ application of the respondents.

4. In view of the above, appeal is accepted; impugned order is set aside and case is remanded to learned trial Court for decision afresh in accordance with law. No order as to costs. M. H./B‑11/L Case remanded.