2003 PLP 37 (CLD)
MUHAMMAD FARRUKH and 2 others‑‑‑Petitioners Versus ALLIED BANK OF PAKISTAN through Manager and 12 others‑‑‑Respondents
| Citation | 2003 PLP 37 (CLD) |
| Forum / Court | Lahore |
| Bench Members | Syed Zahid Hussain, J |
| Parties | MUHAMMAD FARRUKH and 2 others‑‑‑Petitioners Versus ALLIED BANK OF PAKISTAN through Manager and 12 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in 2003 PLP 37 (CLD)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2003 PLP 37 (CLD)?
The case was heard and decided by the Lahore bench comprising: Syed Zahid Hussain, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2003 PLP 37 (CLD) (MUHAMMAD FARRUKH and 2 others‑‑‑Petitioners Versus ALLIED BANK OF PAKISTAN through Manager and 12 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Malik Munsif Awan for Petitioners.
- Sh. Khalid Habib for Respondent No. 13.
- Date of hearing: 13th March, 2002.
Headnotes / Summary
(a) Transfer of Property Act (IV of 1882)‑‑‑ ‑‑‑‑Ss. 54 & 58‑‑‑Sale of immovable property‑‑‑Charge on property sold‑‑‑Plots in question had been mortgaged with Bank since 1990, as security for financial facility‑‑ Purchaser of the plots claimed to be a bona fide purchaser for valuable consideration and relied upon sale‑deeds which were of latter date i.e. 24‑3‑1992‑‑‑Effect‑‑‑Property was encumbered at the time of sale in favour of the purchasers and was not free of charge‑‑‑Such transaction could not be claimed a bona fide as the purchaser on due inquiry would have ‑ known of the fact of mortgage and encumbrances‑ Purchaser did not act with due care in the matter in circumstances. (b) Banking Companies, (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)‑‑‑ ‑‑‑‑Ss. 9 & 18‑‑‑Civil Procedure Code (V of 1908), O.XXI R.58‑‑‑Constitution of Pakistan (19731) Art. l99‑‑ Constitutional petition‑‑Recovery of Bank loan‑‑‑Necessary parties‑‑‑Execution proceedings‑‑‑Objection under O.XXI, R.58, C.P.C.‑‑‑Petitioners claimed to be bona fide purchasers of properties mortgaged with the Bank on the basis of sale- deeds‑‑‑Banking Court disallowed the objection filed by the petitioners‑‑‑Petitioners claimed to be necessary party in the proceedings initiated by Bank against the borrower as they were bona fide purchasers of the properties for valuable consideration and the decree was obtained by Bank without impleading them in the suit‑‑‑Validity‑‑‑Bank proceeded on the basis of record available with it according to which the disputed property was mortgaged with the Bank ‑‑‑ Any dealing by the mortgagor/borrower would not have come its knowledge unless disclosed by the mortgagor, borrower‑‑‑Bank had acted in accordance with law, in suing only the parties to the transactions with it ‑‑‑Mortgage of property and sale claimed by the petitioners being of a later date, no further investigation was warranted in the facts and circumstances of the case‑‑‑Banking Court had rightly dismissed the objection petition filed by the petitioners‑‑ Petition was dismissed in circumstances. Respondent No. 10 in person. Nemo for the Remaining Respondents.
Judgment & Decree
In a suit for recovery filed by the Allied Bank of Pakistan (respondent No. 1) against the defendants/respondents, a decree was passed for a sum of Rs.35,51,641 on 12‑4‑1997 by the learned Banking Court. In execution of the said decree, Plots Nos. 1 13, 114 and 115 of Islam Block, Azam Garden Scheme, Multan Road, Lahore were sought to be sold through auction by the Banking Court, when the petitioners herein filed an objection petition under Order XXI, rule 58, C.P.C. on the ground that they were owners of the said plots vide sale- deed dated 24‑3‑1992 and the said plots be deleted from the auction proceedings. The objection petition was dismissed by the learned Banking Court vide order dated 22‑6‑1998 .taking the view that the plots in question had been mortgaged with the decree‑holder/bank since 1990 and such sale in favour of the petitioners could not defeat the execution proceedings. This order has been challenged through this petition under Article 199 of the Constitution. It is contended by the learned counsel that the petitioners were not made party to the suit although they were vendees of the plots and that they being bona fide purchaser for valuable consideration, they cannot be made to suffer.
2. Learned counsel for the respondents have been heard who support the order passed by the learned Banking Court.
3. Undisputedly, the plots had been mortgaged with the decree‑holder/bank since 1990 as security for the financial facility (it is so averred in paragraph No.3 of the plaint). The sale‑deed relied upon by the petitioners are of latter date i.e. 24‑3‑1992, the property was, thus, encumbered at the time of the sale in favour of the petitioners and was not free of charge. Such a transaction cannot be claimed a bona fide as the petitioners on due enquiry would have known of the fact of mortgage and encumbrances. They did not act with due care in the matter.
4. Insofar as the contention of the learned counsel that the decree has been obtained by the bank without impleading the petitioners is concerned, it has no merit inasmuch as the decree‑holder bank proceeded on the basis of record available with it according to which, the disputed property was mortgaged with it. Any dealing by the mortgagor/judgment‑debtors would not have .come to its knowledge unless disclosed by the mortgagors. The decree‑holder bank, thus, acted in accordance with law in suing only the parties to the transactions with it. In view of the admitted facts i.e. the mortgage of the property and the sale claimed by the petitioners being of a latter date, no further investigation was warranted in the facts and circumstances of the case. The objection petition has rightly been dismissed by the learned Banking Court. For the above reasons, this petition has no merit and is dismissed. No order as to costs. Q.M.H./M.A.K./M‑1189/L Petition dismissed.