P L D 2002 Supreme Court 711 (PLP)

TANVIR AHMED KHAN, J.‑‑‑Leave to appeal is sought against the judgment dated 31‑10‑2000 of a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby F. A. O. No. 116 of 2000 filed by the petitioner was dismissed maintaining the earlier order of the learned Banking Judge‑I, Multan, whereby objection petition filed by the petitioner was dismissed. The facts briefly narrated are that respondent No.3, Mehmood Ahmad Hashmi, secured financial assistance amounting to Rs.5,00,000 from respondent No. 1, Small Business Finance Corporation of the construction of building and hire/purchase of machinery and Ice Factory. He executed an agreement of land and many other documents, detail of which has been given by the learned Banking Judge in his order dated 10‑4‑1988 while dismissing the objection petition. The learned Banking Judge through a judgment/deco dated 25‑3‑1999 decreed the suit. The decree‑holder having equipped with the aforesaid decree filed execution petition on 7‑6‑2000 and notices thereupon were issued under Order XXI, rule 66, C.P.C. to the judgment -debtors. Since nobody appeared in spite of notice, as such an order was passed on 5‑7‑2000 for the auction of the property and auctioneer was, accordingly, appointed. Since the petitioner moved an application under Order XXI, rule 99, read with section 151, C.P.C. before the Executing Court, as such auction was stayed vide order dated 5‑9‑2000. The learned Judge Banking Court, Multan, in the exercise of his powers under Order XXI, rule 58, C.P.C. after taking into account all the documents and pleas raised by the parties, dismissed the objection petition through his order dated 12‑10‑2000. The petitioner filed F.A.O. No. 116 of 2000 before the Lahore High Court at Multan, which has been dismissed by a learned Division Bench through the judgment dated 31‑10‑2000, impugned herein. Hence this petition for leave to appeal. Learned counsel for the petitioner has argued that the learned Banking Court committed an illegality in dismissing the petitioner's application under Order XXI, rule 58, C.P.C. and it should have been decided after affirming full opportunity to the parties by adducing evidence under Order XXI, rule 62, C.P.C. He has also contended that the judgment -debtors have got no connection whatsoever with the property in dispute as, according to him, Bungalow No.901/XXI, Mehmoodabad Colony, Mouza Tarraf Jumma Khalsa, Multan was purchased by the petitioner through five separate sale‑deeds on 6‑11‑1989 from Mst. Basharat Bibi through her special attorney, Mehmood. Ahmad Hashmi. He has further argued that said Mehmood Ahmad Hashmi, judgment‑debtor (respondent No.3); purchased the open plot in 1971 and the same was not a residential building and it was mortgaged. According to him, it is not applicable to a residential portion. Learned counsel appearing for respondent No. l has supported the impugned judgments/orders by referring to certain paragraphs of the judgment of the learned Executing Court whereby detailed reasons have been advanced for dismissal of the objection petition. We have considered the contentions raised by the learned counsel for the parties and have perused the entire documents placed on record with their assistance. We must observe, at the very outset, as noted by the learned Banking Judge that the petitioner only produced photostat copies of the registered sale‑deeds relied upon by her and original documents or attested copies of the same were not produced. Bungalow No.901/XXI is stated to have been purchased by the petitioner as a residential portion. On the contrary, it is admitted that the facility of loam was advanced in the year 1988 and respondent No.3 provided all the documents pertaining to the property inclusive of its mutation, Non‑encumberance Certificate from Sub- Registrar, Multan, approved site plan of the property and many other documents while mortgaging this very property. The petitioner admittedly purchased it in November, 1989. The plea of the learned counsel that it should have been decided under Order XXI, rule 62, C.P.C. and not summarily as done under Order XXI, rule 58, C.P.C. is devoid of any force in the circumstances. It is to be appreciated that after the promulgation of Law Reforms Ordinance (Ordinance XII of 1972), an Executing Court has been given exclusive jurisdiction to determine claims or objections in the attached property. Earlier the procedure was time consuming and so as to ameliorate the plight of the decree‑holder, was after securing the same remained involved in litigation for its satisfaction, certain amendment has been made in Order XXI, rule 58, C.P.C. wherein a proviso has also been added which empowers the Executing Court to dismiss the claim/claim or objection if it cotters to the conclusion summarily that the same has been made designedly or unnecessarily simply to thwart the execution of the decree. Separate suit has been barred and under Order XXI, rule 62, C.P.C. the executing Court can in suitable cases decide the objections after giving opportunity of hearing to the party concerned. However, in the present case, the claim/objection of the petitioner was rightly dismissed under Order XXI, rule 58 C.P.C. as the learned Banking Judge, after thrashing the entire documents placed on record, came to an irresistible conclusion that the disputed property, subject‑matter of this petition, was already mortgaged with the bank. It is reflected from the documents annexed with the petition that the petitioner claims to have purchased the above property in the year 1989 while the same was already mortgaged in 1988. alongwith the objection petition, she only produced photostat copies of the documents while the decree‑holder produced a number of documents to substantiate the claim of the bank that this was the very property which was mortgaged by respondent No.3. at the time of grant of loan. Furthermore, the plea that the objection should have been considered under Order XXI, rule 62, C.P.C., was neither raised before the High Court nor in the present petition. Even otherwise, in view of the detailed judgment rendered by the learned Banking Court, where sufficient number of documents were filed, irresistibly concluding that this very property to which claim is now being made by the petitioner was already mortgaged with the bank. After mentioning the documents produced by the decree‑holder, which are 18 in number, against photostat copies of the sale‑deeds produced by the petitioner, the learned Banking Judge had observed as under:‑‑ "As against it, original documents have been placed for perusal in the Court by the counsel of the decree‑holder which have been gone through by the parties and this Court. Attested copies of these documents have been brought on the record which, as per detailed discussion (supra), sufficiently establish that Mehmood Ahmad Hashmi was owner of the Bungalow No.901/XXI, Mehmoodabad Colony, Mouza Tarraf Jumma Khalsa, Multan. He has mortgaged this property in favour of S.B.F.C. as security for the loan and plethora of record fully strengthen the contention of the decree -holder that the Bungalow, mentioned above, was owned by Mehmood Ahmed Hashmi and has been rightly subjected to auction proceedings." It would also be appropriate to reproduce the determination of the learned Judges of the High Court where they have mentioned that in the record of rights it was specifically mentioned that the disputed property already stood mortgaged with S.B.F.C. The same is reproduced as under:‑‑ The agreement of loan between the judgment‑debtor and the respondent‑Corporation is dated 2‑3‑1988. The learned counsel has not been able to controvert the findings of fact, recorded in the impugned order that in Column No. 10 of the record‑of‑right of the concerned Mauza, a note dated 2‑4‑1988 is entered to the effect that the property stood mortgaged with Small Business Finance Corporation and the record of the Excise and Taxation Department are also supportive of this finding. The respondent‑Corporation had carried out the entire correspondence on the address of the house which stood mortgaged." In view of what has been stated above, we are of the considered view that in the facts and circumstances of the present case, no illegality has been committed by the learned Banking Court in dismissing the objection petition of the petitioner in exercise of its powers under Order XXI, rule 58, C.P.C., which order has been maintained by the learned Judges of the Division Bench of the High Court. Resultantly, in view of the foregoing discussion, the instant petition being without any merit is dismissed and leave refused. M.B.A./S‑195/S Petition dismissed.