2009 PLP 1038 (CLD)

MIAN SAQIB NISAR, J.

The present appeal is initiated against the order, dated 17-3--2004 passed by the learned Banking Court-III, Lahore, whereby an objection petition filed by the appellant in the execution process, brought by the respondent-Bank for the sale of the property purchased by the appellant vide registered sale-deed, dated 23-10-2001, has been dismissed.

2. Briefly stated the facts of the case are, that respondent-Bank brought a suit for the recovery of Rs.5,65,083 against respondents Nos.1 and 2, which was decreed on 26-6-2001; in the execution thereof, the decree-holder oilier than the mortgaged properties of the judgment-debtors sought the attachment of some properties claiming to be owned by them; pursuant thereto, the learned executing Court vide order, dated 20-2-2002 attached the property in question i.e. plot measuring 10 Marlas, situated in Bogiwal, purportedly belonging to respondent No.2 (hereinafter referred to as the respondent).

3. Against the said attachment, the appellant moved an objection petition asserting ownership of the property on the basis that the respondent has sold it to him for a consideration of Rs.1,16,000 and the sale-deed was executed between the parties (the vendor and the vendee) on 23-8-2001, it was presented before the Sub-Registrar for registration the same day, and was accordingly registered on 22-10-2001. Therefore, as on 20-2-2002, he was the absolute and exclusive owner of the property, it could not be attached as being that of the respondent. This objection petition by applying the provisions of section 23(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance), has been dismissed by the learned Executing Court, holding that on account of the noted law, the judgment-debtor (the respondent) of a case is debarred from alienating any property owned by him after the pronouncement of the judgment and decree by the Court without there being prior written permission of the Court, in this behalf, which was not obtained in this case. Hence this appeal.

4. Learned counsel for the appellant states that he had purchased the property by virtue of a sale deed executed by the respondent in his favour on 23-8-2001, which was presented to the Sub-Registrar for the registration purposes that very day; a local commission was appointed to accomplish the registration process, which was finalized on the same date, however, the document was finally registered on 22-10-2001. The instrument in view of section 47 of the Registration Act, 1908 (the Act), shall take effect from the date of its execution and on that date the provisions of the Financial Institutions (Recovery of Finances) Ordinance, 2001, were not in force, which Ordinance was promulgated w.e.f. 30th of August, 2001, accordingly section 23(2) of the Ordinance ibid has no application to the matter, as it has no retrospective effect and resultantly does not debar IIme appellant to acquire a valid title to the property, which in law cannot be attached for the satisfaction of a decree passed against the original judgment-debtor.

5. Replying to the above, learned counsel for the respondent states that though the decree was passed on 26-6-2001 but the sale in question was finalized through a registered instrument on 22-10-2001 and before this date the Ordinance had come into force on 30-8-2001. As the sale of immovable property having a value more than Rs.100 can only be made through registered document and till the enforcement of the Ordinance, the registration had not taken place, therefore, any transaction effected afterwards shall be squarely hit by the section. It has further been stated that section 47 of the Act, only applies inter-se the parties to tire transaction and not to the third party as the Bank in this case is, therefore, for the purposes of the transfer of the title of the property, it shall only be the date of registration, when it took place and not the execution.

6. Heard. Section 47 of the Registration Act, 1908 provides:-- "Time from which registered document operates.--A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration." The effect of the section conjunctively read with section 49 of the Act, means that a document, which is compulsorily registerable, does not affect any immovable property comprised therein till it has been registered; it tale's effect not from the date of the registration but retrospectively from the date of its execution. To support the proposition there are catena of judgments such as AIR 1924 Cal.600, AIR 1926 All. 549, AIR 1938 All. 431 and AIR 1936 Bom.94. Thus on account of the above, it can be validly held that the sale-deed in this case had taken due legal effect on 23-8-2001 as not controverted by the respondent it was executed and presented for the registration on the said date. Learned counsel for the respondent has failed to cite any provision from the Act or any case-law to support his contention that section 47 of the Act ibid, only applies inter-se the parties to the transaction and qua the third party. In our considered and candid view, once the fact of the execution of the document on a particular date is established and/or is not disputed/controverted or disproved by a third party, the said section shall squarely attract and apply to the rights of such party as well.

7. As regards the application of section 23(2) of the Ordinance is concerned, suffice it to say that it was enforced on 30th of August, 2001, whereas the sale deed in the matter was executed on 28-3-2001, the decree in the suit had been passed on 26-6-2001. The Ordinance has no retrospective effect at all and shall not cover or affect any transaction, which has been accomplished before its enforcement. Besides, the provisions of section 23 of the Ordinance eater for two situations; subsection (1) relates to the properties/assets which are under the charge/lien, etc.; the alienation, etc. of any such property by the customer after the publication of notice under section 9(5) of the Ordinance is void; while under subsection (2), the judgment-debtor is prohibited to transfer, etc. any of his other properties, which are not under the charge without the prior permission of the Banking Judge after the pronouncement of the decree by the Banking Court including an interim decree and if the transaction is so made, it shall be void. The expression "after pronouncement of the judgment and decree by the Banking Court including an interim decree under section 11" undoubtedly means the judgment and decree passed under the Ordinance, 2001 and not the judgment and decree, which has been passed under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, or any other repealed law on the subject.

8. For argument of the learned counsel for the respondent that the sale was bad on account of section 53 of the Transfer of Property Act, suffice it to say that this plea has not been taken by the respondent in the reply to the objection petition and cannot be allowed to be raised before this Court at this stage. Resultantly, we find that the order passed by the learned Executing/Banking Court is illegal and oblivious of the correct legal position, therefore, it cannot sustain. Thus, by allowing this appeal, the said order is set aside with the result that the objection petition of the appellant stands accepted and the attachment order of the learned Banking Court in favour of the respondent/bank qua the suit property is annulled. M.B.A./M-243/L Appeal allowed.