2004 PLP 797 (CLD)

Sh. Mazaffar Ahmed Zafar for Appellants. Muhammad Aslam Bahleem and Mukhtar Muhammad Rana for Respondents. Date of hearing: 28th January, 2003. MIAN SAQIB NISAR, J.‑‑‑The respondent‑Bank instituted a suit against one Azhar Bashir the principal borrower and Ihsan‑ul‑Haq the surety, which had been decreed to the tune of Rs.3,20,

483. In process of the execution the share of Ihsan‑ul‑Haq in the shop constructed on Khasra No.597, situated in Ghalla Mandi Gojra, has been attached and directed to be put to auction.

2. In the above situation, the appellants filed an objection petition asserting that they had purchased the share of Ihsan‑ul‑Haq alongwith other co‑sharers of the property through sale‑deed dated 7‑9‑1999 for a consideration of Rs.19,30,000 and therefore, they are owners of the property and the same could not be attached or sold in execution of the decree passed against them. The learned Banking Judge, through an order dated 11‑3‑2002, had directed the appellants to deposit the decretal amount which order was not complied with. Resultantly, when the matter came before the Court on 15‑3‑2002 the objection petition was dismissed on the ground that Ihsan‑ul‑Haq had stood surety for return of the loan given to Azhar Bashir and this property was mentioned in the surety bond. Resultantly, the appellants should have been vigilant in purchasing the property and as the property was joint, therefore, the share of Ihsan‑ul- Haq would not have been validly purchased by the appellants.

3. Learned counsel for the appellants contends that they have purchased the whole of the shop inclusive of the share of Ihsan‑ul‑Haq the surety through the sale‑deed dated 7‑9‑1999 from all the co‑sharers and were not aware if the share of the judgment‑debtors was already part of the surety with the Bank. Resultantly, the appellants are the bona fide purchasers and therefore, neither their objection petition could have been dismissed on the reasoning mentioned in the order nor they could have been directed to deposit the decretal amount.

4. Confronted with the above, learned counsel for the Bank argued that the share of Ihsan‑ul‑Haq was a part of the subject‑matter of the surety given by him, therefore, any transaction of sale made in favour of the appellants subsequent to the above is hit by the provisions of section 53 of the Transfer of Properties Act with clear object to defeat the right of the creditor. We are afraid, this was not the case of the defendants before the Banking Court nor there was any material on the record rather all the co -sharers of the property including Ihsan‑ul‑Haq has sold the same in favour of the appellants through a registered document for a consideration of Rs.19,30,000, which is in the absence of any material of mala fide intention or the collusion between Ihsan‑ul‑Haq and the present appellant, the Court below was not justified to dismiss the objection petition. Resultantly, we allow this appeal, set aside the impugned order and allow the objection petition of the appellants, with the result that the share of Ihsan‑ul‑Haq could neither have been attached nor could have been sold. If the respondent‑Bank seeks the satisfaction of the decree that can be pursued against the judgment debtors of the case. S.A.K./M‑1706/L Appeal allowed.