2016 PLP 1089 (CLD)

This first appeal is directed against an order dated 09.02.2011 passed by learned Banking Court No.1, Multan whereby the objection petition filed by the appellant under section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was dismissed.

2. As per the record, the respondent-bank instituted a suit for recovery against the judgment-debtor, namely, Abdul Sattar Qureshi, which was decreed on 28.05.2009. Learned Banking Court started execution proceedings, whereupon the appellant, claiming herself the purchaser of the mortgaged property, filed an application under section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, read with Order XXI, Rule 58, C.P.C., on the ground, that the judgment-debtor, namely, Abdul Sattar Qureshi sold the residential house/mortgaged property measuring 05-Marlas 16-1/2-Yards, through an agreement to sell dated 10.11.1982, which too was registered; along with the agreement to sell, a general power of attorney was also executed in favour of the appellant; it was agreed, that the loan of House Building Finance Corporation would be paid by the appellant/purchaser, therefore, the appellant is bona fide purchaser; and a fraud has been played with the appellant.

3. Undeniably the judgment-debtor mortgaged the suit property through a registered document in favour of the bank at the time of availing the finance facility, the judgment-debtor could not repay the department, and learned Banking Court, after passing the decree to recover the decretal amount, initiated execution proceedings obviously to sell the suit land through the auction, whereas on the other hand, the appellant is claiming the title on the basis of an agreement to sell which, under the well-established principle of law, undoubtedly does not confer or transfer any title. In fact, the intent and purpose to execute an agreement to sell is to settle the terms and conditions to sell and purchase the property and the title can only be transferred/mutated or conveyed only through a registered sale deed under the Registration Act, 1908.

4. Learned counsel for the appellant contends, that the appellant has discharged the total liability to House Building Finance Corporation in the year, 2002 and because of the terms of the agreement, has become the owner of the property in question, therefore, the decretal amount may be recovered from the other properties of the judgment-debtor.

5. We are afraid, that the contention raised by learned counsel for the appellant has any force, because of the reason, that the appellant could not explain the period consumed after discharging the total liability, as claimed by the appellant, to House Building Finance Corporation, and till the passing of the decree by learned Banking Court. It is also notable, that the appellant, as contended by learned counsel for the appellant, filed the suit for specific performance of the agreement after passing the judgment and decree by learned Banking Court, thus, it is suffice to hold, that all the proceedings being conducted by the learned Banking Court were very much in the knowledge of the appellant and the appellant in any circumstances, does not fall in the category of a bona fide purchaser without notice. Even otherwise, the appellant cannot lay hand on the suit land in the presence of the mortgage deed, admittedly executed by the judgment-debtor, and even otherwise, it is well-known universal principle of law, that once a mortgage is always a mortgage. The judgments referred by learned counsel for the appellant, respectfully submitted, are not helpful to the appellant because, are not applicable on the facts of the case.

6. Resultantly, we are not inclined to interfere with the order impugned herein, therefore, this appeal is dismissed with no order as to cost. MH/F-16/L Appeal dismissed.