2004 PLP 1600 (CLD)

‑‑‑‑S.23‑‑‑Provisions of S.23 of the Registration Act are merely directory and thus do not nullify the document, registered in violation of such provisions nor those can be a means of adjudging a sale transaction in collateral proceedings. (f) Registration Act (XVI of 1908)‑‑‑ ‑‑‑‑S. 47‑‑‑Sale‑deed‑‑‑Effective date‑‑‑Registered sale‑deed operates from the time it is executed and not from the time it is, registered. (g) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)‑‑‑ ‑‑‑‑Preamble‑‑‑Ordinance is not retrospective in operation. Ch. Fawad Hussain and Muhammad Asif Ismail for Appellant. Tariq Saleem Sheikh for Respondents. Date of hearing: 16th October, 2003. MUHAMMAD MUZAMMAL KHAN, J.‑‑‑This execution first appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance No.XLVI of 2001, impugns the order dated 1‑8‑2002, whereby objection petition under section 19(7) of the Ordinance ibid read with Order XXI, rules 58 and 62, C.P.C. filed by the appellant was dismissed.

2. A short factual background of the case is that the respondent‑Bank filed a suit for recovery of Rs.41,17,477 against Sh. Nasrullah Mushtaq (respondent No.2) before the Banking Court‑IV, Lahore, which was decreed ex parte on 9‑8‑1998 with costs of Rs.52,

798. Thereafter bank went in execution of the decree wherein, attachment and sale was prayed with regard to House No.13‑C, Gulberg‑III, Lahore. Another property of the judgment‑debtor situated at M.M. Alam Road, was sold by the respondent‑Bank for an amount of Rs.40,00,

000. It appears that for recovery of the remaining decretal amount a fresh "Fard Taliqa" was filed by the bank before the Executing Court, wherein land measuring 9 Kanals, 6 Marlas in Khewat No.1034 Khatoni No.1938 situated in Mouza Attary Saroba, Tehsil Lahore Cantt. District Lahore, was claimed to be owned by the judgment‑.debtor.

3. Appellant, who is neither a judgment‑debtor nor a guarantor, claims to have purchased land measuring 6 Kanals, 4 Marlas out of the land described in the "Fard Taliqa" mentioned in the foregoing paragraph, from its previous owner i.e. Sh. Nasrullah Mushtaq, the judgment‑debtor through a registered sale‑deed executed on 8‑2‑2001 and registered with the Sub‑Registrar concerned on 27‑10‑2001, basing his title on this sale‑deed, filed an objection petition before the Executing Court (Banking Court‑IV, Lahore) which has been dismissed through the impugned order on the ground that sale‑deed was executed after passing of the ex parte decree dated 9‑8‑1998.

4. Learned counsel appearing on behalf of the appellant submits that sale‑deed' in favour of the objector was executed on 8‑2‑2001 and was registered on 27‑10‑2001 and in view of the provisions of section 47 of the Registration Act, 1908 a registered sale‑deed will operate from the time it was executed and not from the time of its registration and thus, according to him, Financial Institutions (Recovery of Finances) Ordinance No.XLVI of 2001, which was promulgated much later to the execution of his sale‑deed, could not be applied, retrospectively, to attach property of the appellant which vested in him on 8‑2‑2001 and in this manner learned counsel for the appellant urged that order passed by the Banking Court dismissing his objection petition is erroneous.

5. Learned counsel appearing on behalf of the respondents controverting the submissions made on behalf of the appellant referred to the sale‑deed in favour of the appellant and submitted that it was executed on 8-2‑2001 but was registered on 27‑10‑2001 whereas, under law, it could not have been registered after four months of its execution. He relying on section 23 of the Registration Act submitted that every document should be presented for registration within four months of time from its execution whereafter it becomes void. He further contended that the sale‑deed of the appellant, on the face of it, is forged, besides the argument that any transfer by the judgment‑debtor after passing of the decree by the Banking Court, has no relevance and thus claimed that executing Court has rightly turned down the objection of the appellant.

6. We have anxiously considered the respective contentions of the learned counsel for the parties and have examined the record and the law applicable. Section 47 of the Registration Act clearly envisaged that a registered document shall operate from the time of its execution and not from the date of its registration and reads as under:‑‑ "

47. 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." Sale‑deed in favour of the appellant was executed on 8‑2‑2001 and would operate from this time. Now after the appellant was owner on 8‑2‑2001, Financial Institutions (Recovery of Finances) Ordinance, 2001, was enforced on 30‑8‑2001, which has no retrospective applicability and could not be used to attach a property transferred by the judgment -debtor before promulgation of this Ordinance. A similar proposition came under consideration in the case of Al‑Haj Chaudhary Muhammad Bashir v. Citibank N.A. and 2 others 2002 CLD 962 and it was resolved that the Ordinance above referred, is not retrospective in effect.

7. In order to evaluate worth of argument of the learned counsel for the respondent that sale‑deed in favour of the appellant is forged, we have examined the original sale‑deed of the appellant, a photo copy of which has been retained on the file. Stamp papers for this sale‑deed were issued by the Treasury Office and thus their authenticity can in no manner be doubted. These stamp papers were got issued by Muhammad Shahzad Shaukat a general attorney of the vendor for the purpose of execution of sale‑deed in favour of Imran Nasir Waraich and others vide serial No.2259 of the Treasury, at Lahore and sale‑deed thereover was executed on 8‑2‑2001. This document contains an entry at the back of its first page, made by the petition writer showing its execution on 8‑2‑2001. Had this sale‑deed been forged or ante dated, there appears to be no impediment for showing its execution on the day the stamp papers were purchased i.e. 25‑7‑2000, thus argument with regard to forged nature of this 'sale‑deed has no substance. The other submission of the learned counsel for the respondent that these stamp papers should have been used within a period of four months in terms of section 23 of the Registration Act, 1908, has also no substance in it, because section 23 of the Act of, 1908 prohibits registration of a document executed earlier to four months from the date of its registration, but it does not invalidate the document registered in its violation. Sale‑deed in favour of the appellant was registered without any objection, at that time, will have its course and effect, in terms of the Registration Act, 1908 itself. The provisions of section 23 of the Act of 1908 are merely directory and thus do not nullify the document, if at all, registered in violation of those and also, do not have any kind of impact of adjudging the sale transaction and that too, in collateral proceedings, like the one in hand.

8. From what has been discussed above, we are of the considered view that sale in favour of the appellant through a registered sale‑deed, is lawful and could not have been ignored by the Executing Court on the basis of Ordinance No.XLVI of 2001, which has no retrospective effect and could not be attached under its provisions. We accordingly accept this appeal, set aside the order dated 1‑8‑2002 passed by the learned Banking Court‑IV, Lahore, accept objection petition of the appellant and exclude land contained in the sale‑deed in his favour, de‑attaching it. There will be no order as to costs. M.A.W./A‑988/L Appeal accepted.