2003 PLP 2231 (YLR)

Badar Alam for the Decree-Holder. Muhammad Ilyas Khan Tanoli for the Objector. Date of hearing 1st April, 2002. This order will govern the disposal of C.M.A. No.2433 of 2001 moved by applicant Mst. Sarwat Aamir Ishaque, wherein she has prayed that property bearing Survey Nos.24/27 and 24/28, Square No.51, Khewat No.20 of Khatooni No.566 (hereinafter referred to as disputed property) total admeasuring 10 Marlas, may be released from any liability and attachment, as she is bona fide purchaser of it through registered sale -deed dated 4th July, 2000.

2. Facts relevant for disposal of this application are that on 7-11-1993 decree -holder Bank tiled Suit No.37 of 1994, for recovery of Rs.87,99,2541.20 against seven defendants including defendants/judgment -debtors, Muhammad Owais and Muhammad Tanveer, both sons of Muhammad Rafiq. In the suit decree-holder, inter alia, stated that disputed property admeasurrng 10 Marlas purchased through registered Sale-Deeds Nos.1930 and 1931 dated 5-4-1981 by judgment-debtors. Muhammad Owais and Muhammad Tanveer, was under equitable mortgaged with the decree-holder Bank under the memorandum of mortgage executed by them on 25-1-1983. Preliminary decree in the suit was passed on 24-8-1995 and final decree was passed on 15th November, 1999, which contained the decree, inter alia, for sale of disputed mortgaged property.

3. The case of applicant/objector is that two judgment-debtors, Muhammad Owais and Muhammad Tanveer, had executed registered general power of attorneys in favour of Syed Mumtaz Ahmed and Muhammad Nadeem on 1-7-1990 and 13-6-1998 respectively. On the basis of these power of attorneys, by registered sale-deed dated 15-7-1998, Syed Mumtaz Ahmed, attorney of judgment-debtor, Muhammad Owais, sold 5 Marlas from the disputed property to Shahid Mehmood and on 30th July, 1998 Muhammad Nadeem, attorney of judgment-debtor, Muhammad Tanveer, sold the remaining half portion of disputed property to Shahid Mehmood. Subsequent to such sale-deeds mutation was made in the record of rights whereafter Shahid Mehmood, through registered sale-deed dated 4th July, 2000, sold the disputed property to the objector for valuable consideration. The applicant/objector, claiming to be in physical possession of disputed property also spent Rs.5,00,000 on carrying construction and repair work of disputed property. She further stated that she is bona fide purchaser of disputed property, without knowledge of any previous mortgage thus her property is not liable for attachment or sale in the present execution proceedings.

4. In reply to the claim of applicant Mr. Ghulam Murtaza Shah, attorney of decree-holder bank filed his counter-affidavit on 10-10-2001, stating therein about equitable mortgage of disputed property in favour of decree-holder bank since 25-1-1983 and passing of decree for sale of mortgaged disputed property in favour of bank. He denied the claim of applicant as bona fide purchaser of disputed property or any expenditure incurred by her over its construction, and prayed for dismissal of application with costs.

5. Mr. Muhammad Ilyas Khan, learned counsel for the applicant/objector, contended that by virtue of section 53 of the Transfer of Property Act, the objector, being purchaser of mortgaged property for valuable consideration, with all care and caution, and without notice of earlier mortgage, is bona fide owner of disputed property and therefore the same cannot be attached or sold for satisfaction of decree passed in favour of Bank, to cause prejudice to her rights. In support of his contentions learned counsel referred bunch of documents tiled with the application and with the statement dated 31-8-2001. He also placed reliance upon AIR 1940 Lahore 198 and PLD 1990 Lahore 4 to add force to his contentions.

6. Conversely, Mr. Badar Alam, Advocate for decree-holder contended that as the disputed property was under equitable mortgage with the decree-holder bank since 25th January, 1983 no transaction of sale could affect the rights of the decree-holder bank to sell such property towards satisfaction of decree. More, so, when such rights of the decree-holder have matured in the form of decree passed before the purchase of disputed property by applicant. He further contended that although the objector, vide statement dated 31-8-2001, has filed photostat copies of several documents, original whereof, according to her claim, are in her possession but even she had conceded to the position that the two original registered sale-deeds in favour of judgment-debtors, Muhammad Owais and Tanveer, are not with her, which breaks the whole chain of transactions in respect of disputed property and proves that she has not taken due care before purchase of disputed property. Thus, the claim of applicant that she is bona fide purchaser of disputed property is liable to be rejected.

7. I have given careful consideration to the arguments advanced by the learned counsel and perused the case record. It is an admitted position that both the original sale -deeds in respect of disputed property in favour of judgment-debtors, Muhammad Owais and Muhammad Tanveer, are in possession of decree-holder Bank, which proves creation of equitable mortgage of disputed property in favour of decree-holder. Bank on 25-1-1983. In fact the applicant has also not disputed such mortgage in favour on decree-holder but, she has only shown her ignorance about it. It is significant to note that suit was instituted by decree-holder Bank on 7-11-1993 while the sale transactions, one in favour of applicant/objector had taken place on 4th July, 2000 and two others in favour of her predecessor, Shahid Mehmood, had taken place on 15-7-1998 and 30th July, 1998. Such transactions having taken place during the pendency of the suit and even after passing of preliminary decree/final decree in, the suit would not pass any valid title in respect of disputed property in favour of applicant/objector or her predecessor, Shahid Mehmood. Once the property in dispute was mortgaged with the decree-holder Bank and a decree for its sale was passed mere assertion of applicant claiming its title on the basis of some subsequent transaction, that too in the absence of two original sale-deeds in favour of judgment-debtors Muhammad Owais and Muhammad Tanveer cannot be accepted as bona fide. Besides, after passing of decree for sale of mortgaged property in the suit such decree cannot be nullified by the Executing Court by refusing its sale.

8. As a result of above discussion this application being misconceived is dismissed. In view of the above order this application has become infructuous and is accordingly dismissed. S.M.B./H-100/K Application dismissed.