2003 PLP 1507 (CLD)

MAULVI ANWARUL HAQ, J.

In the course of execution of a money decree passed by a learned Banking Court in favour of respondent No.1 and against the respondents Nos.2 to 6, the learned Executing Court proceeded to attach property No.27 located in Gulberg-V, Lahore. The appellants filed an objection petition stating that the property was owned by the L.Rs. of Sh. Noor Hussain who sold it to Masood Ahmad Malik, the predecessor-in-interest of the appellants, vide registered sale deed dated 28-2-1981. The said Masood Ahmad Malik had died on 17-7-1995 and the property devolved upon the appellants. All documents of title were delivered by the said vendor to the said vendee and are in possession of the appellants. It was stated that the property was never mortgaged, neither did it vest in any of the judgment debtors. The respondent No. 1 in their reply came to take a rather curious plea. According to them since the property was owned by the said borrowers, the matter comes within the mischief of lis pendens and the objection petition is not maintainable. It was further stated that the property has been rightly attached. In the same breath it was stated that the property has been transferred by the judgment debtors to the appellant fraudulently. Now the learned Executing Court proceeded to dismiss the objection petition vide order dated 6-8-1998.

2. Learned counsel for the appellants contends that the impugned order is not sustainable at all. According to the learned counsel, there was no mortgage and as such the entire reasoning of the learned Executing Court is without any basis. Learned counsel for the respondent No. 1 on the other hand has tried to support the impugned order.

3. We have gone through the records, with the assistance of the learned counsel for the parties. The copy of the registered sale-deed dated 28-2-1981 is available in the said record. According to this document, Kh. Amanullah son of Sh. Noor Hussain for himself and acting as attorney of Mst. Ismat Ara, Nusrat Ara, Shamim Akhtar, Ifat Tanvir and Surraya Parveen daughters of Noor Hussain sold away the said property (except portion measuring about two Kanals) for a sum of Rs.8,00,000 in favour of Masood Ahmed Malik. As per, the Registrar's endorsement Rs.2,50,000 were admitted to have been received earlier while the balance amount was paid in his presence.

4. We have also examined the plaint in the suit filed by the respondent No. 1 against the remaining respondents. We do not find any mention of any mortgage in the entire plaint. According to the plaint, the loan/facility was secured by pledging the shares of respondent No-2 as F detailed in para. 4 of the plaint. According to the prayer made in the plaint a decree for recovery of Rs.1,556,500 has been sought alongwith a direction to the defendants to buy-back the said shares on payment of Rs.6,00,

000. We further find that the said shares sale agreement and the buy-back guarantee agreement were entered into and executed on 28-3-1982.

5. We in deed find it shocking than in the said factual background apparent on the face of the record, the learned Executing Court has proceeded to dismiss the objection petition of the appellants with the following observations:-- "Of course, it is hard reality that the judgment debtors obtained loan facility on 30-11-1981 whereas front portion of property under attachment was sold by them on 27-4-1981 which means that property was sold by the judgment-debtor during the subsistence of mortgage in favour of the decree holder bank." As stated by us, there is no mortgage. The learned Executing Court has passed the impugned order without applying its mind at all. It even forgot that it is dealing with objection to attachment and that the property has been attached under its order. There is no concept of attachment vis-a-vis a mortgaged property, which matter is dealt with under Order XXXIV, C.P.C. Learned counsel for the respondent is not at all in a position to assert that there was a mortgage. Even if we were to assume that there was a mortgage, then the loan agreements were made on 24-3-1982 whereas the property stood sold on 27-4-1981 Thus, the judgment-debtors, who of course, or were not the owners of the property (except Kh. Aman Ullah respondent) could not have mortgaged the property with the Bank having already sold it on 29-2-1981 to the predecessor-in -interest of the appellants. This F.A.O. is accordingly allowed, the impugned order, dated 6-8-1998 is set aside and the objection petition filed by the appellants is allowed. The learned Executing Court is directed to immediately release the property. The respondent No. 1 shall pay the costs in this Court as well as in the Executing Court.

6. Copy of this order be immediately remitted to the Executing Court alongwith the record. S.A.K./H-138 /L Appeal allowed.