2003 PLP 280 (CLD)

Muhammad Saleem, the appellant/objector, through the filing of the present appeal, has called in question order, dated 16‑5‑2001, whereby the learned Banking Court dismissed an objection petition, filed by the appellant.

2. Facts leading to the filing of the present appeal are that respondent No.1 filed a suit for recovery of Rs.35,31,641 alongwith the liquidated damages against the respondents, which was decreed by the learned Banking Court vide judgment and decree, dated 12‑4‑1997 and consequent to that the respondent‑Bank initiated the execution proceedings, during which Property No. XXXVII , S.6 measuring 4‑1/2 Marlas situated in Rasul Nagar Gulberg‑III, Lahore (hereinafter referred to as disputed Property) was attached. The petitioner filed objection petition under Order XXI, rules 58, 59 and 60, C.P.C. before the Learned Banking Court praying for the de- attachment and release of the disputed property. This application was, of course, opposed by the respondent Bank and ultimately the learned Banking Court dismissed the said application vide order, dated 16‑5‑2001, hence the present appeal.

3. None has entered appearance to represent the respondents Nos.2 to 13, therefore, they are proceeded ex pane.

4. The learned counsel appearing for the counsel for the appellant has contended that the appellant is neither a borrower nor the defendant nor the judgment‑debtor, thus the execution proceedings could not be initiated against him. He has further contended that he has got interest in the attached property, which cannot be attached in execution of the decree, moreso when the same has not been passed against him. Conversely the learned counsel for the respondent No. 1, while supporting the impugned order, has submitted that the disputed property was rightly attached in execution of the decree and the appellant has filed the objection petition, as well as the present appeal only to prolong the proceedings.

5. From the available record, the learned counsel for the respondent No. 1 could not point out that the appellant was arrayed as one of the defendants or in fact any decree was passed against him. We have also examined the available record and do not find that any decree was passed against the appellant. This was, precisely, the case made out by the appellant before the learned Banking Court in his objection petition, which has not at all been adhered to by the learned Banking Court, while passing the impugned order. We have perused the impugned order and find that as a matter of fact the contention raised by the appellant has not at all been considered by the learned Banking Court in its true perspective and the impugned order was passed purely on the assertions made by one Abdul Majeed in another appeal. The stances taken in both the appeals by the present appellant and Abdul Majeed, although they are real brothers, are completely distinct and have to be dealt with accordingly. It was specifically pleaded by the appellant in his application that he is neither the judgment‑debtor nor guarantor nor customer and that he never furnished the title deeds of the property to the respondent‑Bank. These matters have not been dealt with by the learned Banking Court and thus the learned Banking Court passed the impugned order in a mechanical manner without taking into consideration the contentions raised by the appellant in his objection petition.

6. Upon the examination of the objection petition and the available record, we find that this was the fit case in which the learned Banking Court, before passing the impugned order, ought to have investigated the claim and objections to the attachment of the property, raised by the appellant, by providing sufficient opportunity to the parties for establishing their respective claims through production of evidence. It has been held in Mst. Surayya Begum v. Muslim Commercial Bank Ltd. and 4 others (PLD 1990 Lahore 4) that "All claims relating to the rights, title or interest of the claimant or objector in the attached property has to be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest". It does not mean that the learned executing Court is under an obligation to mechanically record the evidence of the objector in each and every case of course, the learned executing Court had to see in individual cases as to whether the case warrants the recording of evidence or not and that the objection application has been filed frivolously, contumaciously and to delay the proceedings or it is a genuine application. Primarily, it is the function of the Banking Court to decide as to whether the objection petition is to be decided after recording the evidence or only after hearing the parties. In the instant case, we feel that this was the fit case, where the appellant should have been allowed an opportunity to establish his claim regarding the attachment of the property, through the production of evidence.

7. Upon the examination of the impugned order, we find that the same is neither in conformity with the record of the case nor inconsonance with the law on the subject, thus we are of the view that the same is not sustainable, thus we are inclined to set the same aside.

8. Upshot of the above discussion is that the present appeal is allowed and the impugned order, dated 16‑5‑2001 is set aside with no order as to costs. The result could be that the objection petition, filed by the appellant shall deem to be pending before the learned Banking Court, who shall decide the same, after affording adequate opportunity to the parties to produce their evidence to establish their respective claims and of course in accordance with law preferably within a period of three months. S.A.K./M‑1516/L Order accordingly.