Objection petition

Petitioner (one of the legal heirs) filed objections on the report submitted by the Court Auctioneer, but the same was dismissed on account of petitioner's failure to deposit the 20% (twenty percent) of the sum realized at the sale

Petitioner preferred an appeal against the said order before the High Court which also met the fate of dismissal

Plea of petitioner was that his objection application was made under Order XXI, Rule 84 of the Code of Civil Procedure, 1908 ("C.P.C.") but it was decided within the limits of Order XXI, Rule 90

Validity

Such plea of petitioner was not tenable in eyes of law

It is clear from a bare reading of Order XXI, Rule 84, C.P.C. that the purchaser is required by law to immediately pay twenty-five percent of purchase money and there is no word that suggests objections to auction proceedings may be filed by the owner/legal heirs of the owner of the subject property under this rule

Moreover, petitioner in this case, was not a purchaser but his predecessors in interest were the owner of the subject property, hence, he could not have invoked Order XXI, Rule 84, C.P.C.

Trial Court deemed the objections filed by petitioner as an application under Order XXI, Rule 90, C.P.C.

Trial Court directed the petitioner to deposit twenty percent of the sale proceeds but he failed to do so

Neither he made any application for an extension of time nor showed any willingness to deposit such an amount

Trial Court has rightly observed that there had been an inordinate delay in the execution of the decree and six years had already elapsed

Petition was dismissed and leave to appeal was refused.

Sale may be set aside on the grounds of material irregularity or fraud under Order XXI, Rule 90, C.P.C. wherein the applicant has to establish substantial injury sustained by him owing to such material irregularity or fraud in the sale by public auction

Additionally, applicant has to comply with the second proviso to this rule by depositing twenty percent of the sum realized at the sale

Rationale behind the second proviso is to discourage frivolous objections frustrating the execution of the decree.

Judgment-debtor (defendant/Labour Department) filed constitutional petition as objection Application filed by it was dismissed, which order was maintained by the District Court

Contention of the petitioner (objection applicant / Labour Department) was that according to Labour Department Policy, the suit-property was not transferable

Validity

Petitioner did not challenge the vires of judgment and decree which were still intact and filing of objection application by the petitioner amounted to seeking review of judgment and decree regarding which the executing court had no jurisdiction to annul set aside/modify the judgment and decree

Executing Court cannot go behind the decree rather it is duty bound to execute the decree in letter and spirit

No illegality, material irregularity or jurisdictional defect had been noticed in the impugned order and judgment passed by the courts below

Constitutional petition, filed by objection applicant,was dismissed in liminebeing devoid of any force.

Petitioner/plaintiff filed a suit against Government Officials and various persons including the objector for removing the encroachment made in the street, which was decreed, directing the officials to remove the encroachment

Appeal and civil revision thereagainst were filed but dismissed

Petitioner/plaintiff filed execution petition which was allowed

During the execution proceedings the objector moved objection petition that he had not encroached any part of the common passage/street as there was no regular street/common passage

Court framed certain issues by exercising purported jurisdiction under S. 47, C.P.C.

Validity

Mukhtiarkar Report submitted before the Tribunal and the finding given by the Tribunal had been upheld up to the Supreme Court

After exhausting all such remedies when the applicant/lady went for the implementation before the Tribunal, the Tribunal passed the impugned Order

Reason for exercising jurisdiction under S. 47 of C.P.C., was mentioned in paras. 5 & 6 of the impugned Order, that since Supreme Court had given the observation about declaration of title of the objector, thus the Tribunal took it upon itself to decide the same controversy; however, while doing so, it completely overlooked the fact that already that controversy had been decided by the Court, earlier preferred by the Objector against other persons in respect of his entitlement

Therefore, the view taken by the Tribunal with regard to invoking S. 47 of C.P.C. was erroneous and not a proper exercise of jurisdiction and was illegal

Consequently, the impugned Order was set-aside

Case was remanded to decide the application for implementation afresh.

Objection petition was moved by sons of the judgment debtor (respondents) with the contention that house-in-question was actually owned by their late mother by virtue of dower-deed and they being her legal heirs , were the owners of said house

Trial Court accepted the objection petition holding that the house-in-question was given as dower by the judgment-debtor/respondent to his wife

Validity

Firstly, the dower was in nature of debt, not a charge

Respondent/judgment-debtor, in the present case, by mentioning the house-in-question in the agreement-to-sell in fact showed the same as charge towards satisfaction of debt against him; secondly, the very transaction and for that matter the contents of dower-deed were not proved

High Court set-side the impugned judgment and order passed by the District Court

Appeal was allowed, in circumstances.

Executing Court could not go behind/beyond the decree, but at the same time all ancillary questions arising out of the decree had to be decided by the Executing Court.

Petitioner contended that such applications could not be maintained as it had not been filed after getting authorization from High Court as required under O. XLV, R. 15 of Code of Civil Procedure, and that limitation was to commence from authorisation in terms of said Rule

Validity

While disposing of the earlier objection of petitioner, High Court had employed a deeming clause for validating the two applications from the date of its filing

Same had been ordered to be deemed to have been sent to the executing Court for execution under R. 15 of O. XLV of C.P.C.

When time could be relaxed (under S.14 of the Limitation Act, 1908) on the ground of pursuing a remedy before a wrong forum, then an action initiated before a competent Court of law but suffering from some technical defect might easily be considered to be proceedings valid for the purpose of counting the period of limitation

Irregularity could not come in the way of counting the period of limitation

Application for execution filed directly before civil Court could not be considered to be totally non est and non-considerable for the purpose of determining the question of limitation

Execution applications filed without compliance of the provision of O. XLV, R. 15, C.P.C. to be taken as sufficient for the purpose of bringing the pending proceedings within the prescribed period of limitation

Revision petition was dismissed accordingly.

Another respondent allegedly was owner of suit property prior to the institution of suit, filed objection petition and application for cancellation of sale deed before Executing Court

Executing Court accepted objection petition, cancelled registered sale deed and dismissed the execution petition

Petitioner's appeal was also dismissed by appellate Court

Validity

Admittedly, said one of the respondent was owner of Ahata (measuring 8 marla, 1 sarsohi), who sold portion (4 marla 2 sarsohi) to the petitioner

Petitioner filed suit for specific performance against said respondents on who submitted consenting written statement

Trial Court decreed the suit

One of the alleged purchasers of the said Ahata for consideration from said one of the respondents through allegedly registered power of attorney executed by said respondent in his favour, alienated portion of said Ahata measuring 4 marla 2-sarsohi in favour of the respondent who got executed an oral sale mutation sanctioned prior to institution of petitioner's suit

Executing Court executed sale deed in favour of petitioner and possession of decretal property was also transferred to him on

Said respondent moved objection petition and also moved application for cancellation of said sale deed before Executing Court

Executing Court, without framing issues and recording evidence, accepted the petition/application dismissing the execution petition of petitioner and setting aside the sale deed

Mutation sanctioned in favour of said respondent, which was prior to the institution of the suit by petitioner on basis of agreement to sell, but such agreement to sell was executed prior to the sanction of said mutation

Said mutation had not been incorporated by said one of the respondents (original owner) himself but through general attorney having power of attorney executed on date after the date of execution of said agreement to sell and in a city other than the city where property situated

Facts of the purchase of property by said respondent from alleged seller, for alleged consideration, and execution of power of attorney by original owner in favour of such seller were not established on record which required evidence

Said respondent had every knowledge of decree (of Trial Court) as he himself challenged that decree by way of application under S.12(2) of Civil Procedure Code, 1908

Question of limitation was also relevant

All questions could not be resolved without recording of evidence

Executing Court had to frame necessary issues to have recourse to evidence to resolve the factual controversy

Executing Court summarily accepted the assertions made by said respondent on extraneous consideration/personal assumptions

Revision petition was allowed, impugned orders of Courts below were set aside, and execution petition, objection petition, and application for setting aside sale deed were deemed pending before the Executing Court.

Acceptance of objection petition by Executing Court during execution proceedings being an order of final nature without providing a fair opportunity of hearing violative to the fundamental right of fair trial and due process protected under Art. 10A of the Constitution.

Objections as to the non-executability of decree related to execution of decree and court would be clearly barred from considering the same under the provisions of R. 23A, O. XXI, C.P.C. unless the judgement debtor deposited the decretal amount in the court or furnished the security for its payment

Impugned order passed by executing Court was just, proper and within the four corners of law

Appeal being not maintainable was dismissed accordingly.

Section 47, C.P.C. barred separate suit where question was within the scope of the section that a court was barred from considering such objections, unless judgment debtor makes compliance of R. 23A of O. XXI, Civil Procedure Code, 1908 by depositing the decretal amount in Court or furnishes security for its payment.

Objection of the appellant/judgment-debtor was that execution petitions filed by respondents/decree-holders were time-barred as the same were filed after five years of passing of decision of present case by the Trial Court

Held, that the present case was finally decided by the High Court on merits (in the year 2014) after providing the parties an opportunity of hearing, whereafter decree-holders filed execution petitions next year

All execution petitions were, admittedly, filed by the decree-holders within three years under Art. 181 of the Limitation Act, 1908

Judgment/decree/order, which had been accepted or modified or reversed or affirmed by the higher forum on merits both on points of facts and the law involved therein, attained the status of final decree and the same was to be executed

Doctrine of merger fully applied to the reversal and modification and also to all to those cases in which the judgment of lower forum had been affirmed in appeal or revision by a higher forum

Execution petitions filed by the decree-holders were within time as the same were filed within a period of three years from the date of final judgment passed by the High Court

No illegality or infirmity was found in the orders and judgments passed by the Executing Court dismissing the objection petitions of the appellant/judgment debtor

Execution first appeals were dismissed, in circumstances.

Held, that objection petition was not maintainable from its inception and any later deposit of money could not be used to argue otherwise.

Duty to raise such an objection at the initial stages was cast on the judgment debtor.

Findings recorded by the Courts below were devoid of merits and without application of judicial mind which were not sustainable under the law

Impugned orders passed by the Courts below were set aside and execution petition was dismissed

Revision was allowed in circumstances.

Appeal was disposed of with the observation that monthly rent should be increased and deposited in the account of landlord and dispute with regard to previous rent should be resolved by the competent Court of law

Execution petition was filed but same was dismissed on the ground that no relationship of landlord and tenant existed at the time of filing of appeal

Validity

Provisions of Civil Procedure Code, 1908 were not applicable to the proceedings in stricto sensu, however, Rent Controller could follow the equitable principles thereof

Decree should be executed in terms and conditions mention in the code

Executing Court had to confine its deliberations within the purview of the decree and not beyond that and to dispose of the objections in the light of terms and conditions of a decree

Rent Controller had no authority to deviate from a real controversy between the parties

Petitioner had filed execution petition with regard to consent order passed by the High Court

Executing Court was bound to resolve the question of amount of arrears of rent in the case

Matter was remanded to the Executing Court by the High Court with the direction to dispose of the execution petition and objection filed by the parties in the light of terms and conditions of order passed by the High Court

Appeal was allowed, in circumstances.

Present execution petition had been filed after nine years from the date of passing of the decree which was barred by time

Appeal had been allowed to be withdrawn without any modification or alteration in the judgment passed by the Court below

Judgment of Court below would not merge into the order of Appellate Court, in circumstances

Decree-holder should have filed execution petition within three years from the date of decree of Court below and not from the order of Appellate Court

Appellate Court had rightly set aside the order of Executing Court and dismissed the execution petition being time barred

No error of law or mis-reading of record had been pointed out in the impugned order passed by the Appellate Court

Revision was dismissed in, circumstances.

Execution petition was filed for implementation of succession certificate wherein objection application was moved but same was dismissed

Contention of petitioner was that succession certificate was not a decree and same was not executable

Validity

Succession certificate did not fall within the ambit of decree and it merely declared that legal heir of the deceased was entitled to recover the amount mentioned in the said certificate

Succession certificate was not capable of being executed as a decree or order of the Court

Impugned order passed by the Court below was set aside and execution petition was dismissed by allowing objection petition

Appeal was allowed, in circumstances.

Execution petition was moved wherein applicants filed objection petition that they had possession of suit land but they had not been impleaded in the suit

Executing Court dismissed the objection petition which had been maintained by the Appellate Court

Validity

Petitioners had been impleaded as defendants in the connected suit which had been consolidated with the suit of decree-holders

Applicants were well aware with regard to suit filed on behalf of decree-holders and their father had contested the same

Petitioners had filed present objection petition with mala fide intention to defeat the execution of decree which had attained finality

Applicants had not approached the Executing Court with clean hands and they were estopped by their conduct to object the execution proceedings

Courts below had rightly dismissed the objection petition, in circumstances

No irregularity had been committed by the Courts below while dismissing objection petition

Revision was dismissed, in circumstances.

Without such a deposit the objection application filed by the judgment debtor under O. XXI, R. 90, C.P.C. was not maintainable.

Petitioners were returned candidates who were aggrieved of orders passed on objection petition filed by voters whereby Election Tribunal declared results of elections annulled and directed recount of votes

Validity

No aggrieved person was made competent to file objection petition calling in question validity of election of a candidate

No objection petition was available in the scheme of law on the subject providing remedy to voters in election to ask for inclusion of their votes in final count, which for any reason were not included by election staff in final count

Objection petition filed under R. 5(1)(h) read with R. 61 of Legal Practitioners and Bar Councils Rules, 1976 by voters asking for inclusion of their votes/ballots in final count was not competent and not maintainable

High Court declared objection petition as incompetent and not maintainable and set aside order passed by Election Tribunal

Constitutional petition was allowed in circumstances.

Respondents had sought the execution of order passed by the Appellate Court and not the judgment and decree passed by the Trial Court

Appellate Court while disposing of the appeal did not pass any decree

Respondents could apply to the Appellate Court to pass a decree in the terms of the compromise between the parties

Once a decree was passed then Executing Court could continue with the execution proceedings

Judgment and decree passed by the Trial Court had been replaced through compromise between the parties

Order passed by the Appellate Court recording the compromise between the parties had not been assailed by the applicants

Respondents could not be compelled to institute a fresh suit for enforcement of terms and conditions of the compromise

Revision was dismissed in circumstances.

Appeal was dismissed, in circumstances.

Appellants were owners of property which was frozen by Accountability Court against which they had filed objection petition

Accountability Court allowed objection petition subject to furnishing of Bank guarantees equal to the amount of loss allegedly caused by appellants

Validity

Provisions contained in S.12(a) of National Accountability Ordinance, 1999 authorized not only Chairman National Accountability Bureau but also the court to freeze the property at any time

Such power of court was also made conditional to exercise the same only when trying the accused under National Accountability Ordinance, 1999

Word 'any time' used for exercise of power either by Chairman or the Court in regards to freezing of property was subject to or to be read as at any time during investigation by Chairman National Accountability Bureau or at any time by court during course of trial

Word 'any time' did not empower court to freeze property before commencement of trial and likewise once an accused was sent for trial, then Chairman National Accountability Bureau became functus officio which was also well clarified by first proviso of S. 12 of National Accountability Ordinance, 1999

High Court set aside freezing order passed by the Chairman National Accountability Bureau and also judgment rendered by Accountability Court and directed that keeping in view provision of S. 12(a) of National Accountability Ordinance, 1999 and if deemed appropriate by the authorities, they may re-freeze property of appellants if reasonable grounds existed for exercise of power under S.12(a) of National Accountability Ordinance, 1999

Appeal was disposed of accordingly.

Auction proceedings of mortgaged property were conducted in the year 2008 (05-06-2008) under S.15 of the Ordinance whereas the said Section was declared ultra vires the Constitution on 10th of December 2013 by the Supreme Court; as such, the Banking Court had rightly held that auction dated 05-06-2008 had become a past and closed transaction and could not be resurrected

Constitutional petition was dismissed in circumstances.

Banking Court granted interim relief (suspension of auction) on 23-05-2017 subject to deposit of 50% cash of decretal amount and next date of hearing was fixed as 30-05-2017 but auction of property was completed on 25-05-2017

Contention of petitioners was that objection petition was dismissed without affording proper hearing and Banking Court had failed to appreciate the facts properly

Validity

Petitioners were not afforded time till 30-05-2017 for deposit of 50% cash of decretal amount

Subsequently conducting auction proceedings on 25-05-2017 were not in defiance with the court's order

Applicants had failed to point out any irregularity or fraud in publication or conducting auction of mortgaged property

If fraud was alleged in an objection petition then its necessary ingredients must be pleaded so as to prove the same

General and bald allegations of fraud could not form basis to upset the proceedings otherwise validly conducted by a Court of competent jurisdiction

Petitioners had failed to prove fraud by the Bank

Banking Court had rightly dismissed the objection petition filed by the petitioners

No illegality or perversity was pointed out in the impugned order passed by the Banking Court

Appeal was dismissed in circumstances.

Plaintiff and defendant made settlement through compromise that properties mentioned in the compromise deed would be transferred in favour of plaintiff

Plaintiff moved execution petition wherein surety submitted objection petition but same was dismissed

Contention of surety was that decree was passed with regard to the properties which were not subject matter of the suit and he was not bound to satisfy the decree

Validity

Decree was passed on the basis of compromise with regard to properties which were not subject matter of the suit

Said decree could not be executed against the surety

Surety never consented for satisfaction of decree regarding the properties which were not subject matter of the suit

Suit was not decided on merits

Parties had agreed that if properties mentioned in the compromise deed were not transferred in favour of decree-holder then decretal amount would be recovered after auction of the properties

Surety was not bound to satisfy the decree of the Court passed on the basis of compromise deed when he was not privy to the contract of compromise

When terms were settled between the parties to the suit through a compromise then surety would be discharged

Findings recorded by the Courts below were nullity in the eye of law

Impugned orders passed by the Courts below were set aside

Revision was allowed in circumstances.

Objection petitioner, being father of the judgment debtor (grandfather of minors), raised objections that decree was against his son so the execution petition to his extent was liable to be dismissed but executing Court dismissed his objection petition

Petitioner (father of judgment debtor) contended that Appellate Court had wrongly held his appeal against dismissal of objection petition as not maintainable

Validity

Section 14 of Family Courts Act, 1964 stipulated that decision given by the Family Court was appealable provided the said decision was not an interim order or decision of interlocutory nature

Order passed during the pendency of the suit could not be treated as an interim or interlocutory order if the said order had finally determined an issue

Executing Court, in the present case, while dismissing the objection petition filed by the petitioner, had finally determined the objections raised by him relating to the executability of decree against him and nothing else remained to be decided relating to the said objections

Said order could not be treated as an interlocutory order as the finality was attached to the same

Said order would amount to "a decision given" in terms of S. 14 of Family Courts Act, 1964 and appeal against the same would be available before the Appellate Court

Order passed by the Appellate Court, dismissing the appeal as not maintainable, was not in accordance with law

High Court set aside impugned order and remanded the matter to the Appellate Court to decide the matter afresh

Constitutional petition was allowed accordingly.

Appellant moved objection application to the effect that he was ready to pay the decretal amount but objection petition was dismissed by the Banking Court

Validity

Appellant had not filed appeal against the impugned decree within prescribed period of limitation or at any time thereafter

Appellant remained inextricably involved in the execution and auction proceedings and made applications therein which were duly heard and decided on merit

Appellant had failed to make the mandatory deposit required to prefer present application and had already forgone his right to appeal

Application assailing the execution proceedings and result thereof was not tenable in law

Appeal was dismissed in circumstances.

Petitioner had no concern with the entire transaction right from the payment of amount uptill establishment of the company

Issue should have been framed with regard to identity of the petitioner as a judgment-debtor

Executing Court without appreciating the material available on record had discarded the request of framing the issue to identify the judgment debtor unjustifiably

Decree could be executed against a person who was not a judgment-debtor provided he was a surety, a purchaser pendente lite, a heir of deceased judgment debtor or in possession of subject property of decree

Sameness of name was not sufficient to bring someone within the clutches of the decree

Besides sameness of name one must have same interest, character or capacity within the meaning of judgment debtor

None of the said requirements had been satisfied in the present case

Petitioner could not be held liable for satisfaction of decree in any capacity

Petitioner was neither party in the suit nor was partner, guarantor or surety

Impugned order passed by the Executing Court was set aside

Execution proceedings should remain pending and be finalized in accordance with law

Revision was allowed in circumstances.

Petitioner raised objection to issuance of 'Warrant Dakhal' in favour of decree-holder on the ground that he had purchased decreed land along with other land through unregistered deed executed in year 1979

Petitioner had constructed a house on the said land

Land had been mutated in his favour in year 2013

Petitioner also averred that in absence of final decree, preliminary decree was not executable when he had purchased property in the year 1979

Validity

Sale deed for which registration was compulsory could not create title in favour of buyer when the same was not registered

Bailiff was directed to determine cost of construction as per market value and decree holder was ordered to make payment of such construction

When decree had been executed to a large extent and steps had been taken to safeguard interest of persons who had raised construction during pendency of execution proceedings, plea of preliminary decree being time barred was not acceptable

High Court dismissed revision petition in given circumstances.

Tenant got recorded his statement that he would vacate the rented premises within a specified period and would hand over the possession of the same to the landlord and eviction petition was disposed of

Execution proceedings were instituted by the landlord wherein objection petition was moved on the ground that landlord had sold the rented premises through agreement to sell

Objection petition was dismissed by the Rent Controller and warrant of possession was issued

Validity

Term "as if it was a decree of a civil court" in S.23 of the Ordinance was in nature of deeming clause

Rent Controller, in execution proceedings, had to treat every order made under Ss.14, 17, 18 & 21 of Islamabad Rent Restriction Ordinance, 2001 as a decree of a civil court

Provisions of Islamabad Rent Restriction Ordinance, 2001 did not obligate the Rent Controller to pass a decree while deciding an eviction petition

Absence of a decree did not make the execution proceedings before the Rent Controller coram non judice or of no legal effect

Landlord would continue to enjoy the status of being the owner of rented premises until and unless applicant was able to establish his claim for specific performance of agreement to sell by a court of competent jurisdiction

Pendency of a civil suit did not give license to the tenant to remain in occupation on the rented premises

Mere pendency of a suit for declaration or specific performance of an agreement to sell was no ground to avoid eviction of tenant who claimed to have purchased the rented premises

Eviction proceedings could not be stayed or stalled on the plea that tenant in possession was holding an agreement to sell

Eviction order had attained finality and tenant could not get out of it by either asserting that he had become the owner of the rented premises or by asserting that no decree had been passed against him

Tenant was estopped by his conduct to take a contradictory stance to prolong his occupation

Constitutional petition was dismissed in limine.

Suit for recovery of immovable property was decreed by High Court in exercise of revisional jurisdiction in favour of plaintiff

Plea raised by petitioner was that objection petition was filed by him in furtherance of the order passed by Supreme Court and decree could only be executed through partition of land as it was part of joint Khata

Validity

Petitioner concealed material facts and did not raise such point as a ground in petition and it appeared as an afterthought

Petitioner was unable to point out any illegality or material irregularity having been committed by Courts below whilst passing order in question

Petitioner was also unable to point out any exercise of excess of jurisdiction by Courts below or to show that order in question was perverse

High Court in exercise of Constitutional jurisdiction declined to interfere in the order passed by Executing Court

Petition was dismissed in circumstances.

Executing court had powers to ask for pro and contra evidence in respect of the objection petition.

Requirement for depositing upto 20% of sale proceed can be imposed by Banking Court after making necessary investigation on objection petition and not as a pre-requisite condition to consider the petition.

Objector's plea was that his sale agreement was earlier in time and he was in possession of suit-land in part performance thereof and his suit for its specific performance was pending, when decree-holder in collusion with vendor on basis of forged sale agreement got such decree and possession of suit-land in its execution

Dismissal of objection petition by Executing Court

Validity

Decree-holder in his written statement filed in objector's suit for specific performance had not disclosed sale agreement in his favour by vendor

Objector had alleged his dispossession by Executing Court to be without notice to him

Executing Court was legally obliged to have framed an issue on question of possession and record evidence of parties to resolve same

Objection petition being akin to suit, thus, separate suit regarding same matter would be barred under O.XXI, R. 100 & 103, C.P.C.

Executing Court had illegally dismissed objection petition while observing that objector was not party to suit wherein decree under execution had been passed

Doctrine of lis pendens would protect objector's rights

Objector after dismissal of his objection petition had been left with no remedy and forum

Executing Court by dismissing objection petition without providing a fair opportunity of hearing to objector had violated his fundamental right protected under Art. 10-A of the Constitution

High Court set aside impugned order and directed Executing Court to decide objection petition afresh after framing necessary issues and recording evidence of parties.

Bank filed suit for recovery of loan amount against the mortgagor who did not file application for leave to defend nor did he appear and suit was decreed ex parte

Execution petition was filed and mortgaged property was ordered to be attached

Petitioner filed objection petition for protection of his possession being tenant of mortgaged property which was dismissed by the executing court

Validity

Section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, applied to cases where notices were issued by the financial institution to the mortgagor demanding payment of the outstanding mortgage money and such notices could be issued even without approaching the Banking Court

No notices were issued by the Bank and suit for recovery was filed before the Banking Court which resulted into passing of the decree

Upon pronouncement of judgment and decree, S.19 of the Ordinance would come into play, which provided the mechanism for execution of the decree and sale of the mortgaged property with or without intervention of the Banking Court

Applicability of subsection (3) of S.15 of the Ordinance had been specifically excluded in the sale of mortgaged, pledged or hypothecated property by a financial institution in exercise of its power conferred by S.19(3) of the Ordinance

Burden was on the petitioner to prove the assertion that lease in his favour was bona fide and the question as to whether the lease was bona fide or not, could be proved only through evidence and not otherwise

Question as to the presumption of the lease to be not bona fide, was to be left at the discretion of the Banking Court, and such question was to be decided and such discretion was to be exercised by the Banking Court according to the facts and circumstances of each case

Lease was created in favour of the petitioner during the subsistence of the mortgage in favour of Bank

Consent of Bank/mortgagee was also not obtained by the mortgagor

Lease was created for a term of five (5) years through an unregistered document, the purpose of not getting the lease registered was obvious

Had the lease been submitted for registration, the Sub-Registrar would have immediately refused to register the same in view of the mortgage already registered with him

Mala fides on the part of mortgagor and collusion on the part of petitioner were apparent

Facts about creation of the lease in favour of the petitioner after creation of the mortgage, petitioner having failed in establishing that Rs. 1,060,000.00 was paid by him towards the rent, and the collusion on his part, were noticed by the Banking Court

Lease was not bona fide and petitioner was not entitled to the protection under the proviso of S.15(6) of the Ordinance

Mortgagor did not file any appeal against the decree passed by the Banking Court for the sale of the mortgaged property and said decree had attained finality

Duty of the Banking Court was to execute the decree in accordance with law

No infirmity or illegality in the impugned order passed by the Banking Court was found

Constitutional petition was dismissed.

Objection petition having been rejected by the Executing Court, judgment-debtors had filed appeal against rejection order

Contention of judgment-debtor that Executing Court had rejected objection petition without hearing him, was against the record

Order rejecting objection petition referred to the presence of counsel for judgment-debtors as well as decree-holder at the time of passing said order

Judgment-debtors had not stated any ground in appeal that they had been condemned unheard by Executing Court

Authenticity of the judicial proceedings could not be doubted simply on the oral arguments made by the counsel for judgment-debtors, when particularly such arguments were negated by order passed by Executing Court and no such ground of not hearing the judgment-debtors by the Executing Court had been raised in the memo of appeal by the judgment-debtors

Counsel for judgment-debtors was not justified to urge that the execution proceedings should have been stayed by Executing Court on account of pendency of petition for leave to appeal before the Supreme Court, wherein no injunctive order had been issued by Supreme Court

No absolute rule or practice of High Court existed to admit every Execution First Appeal to regular hearing and then decide the matter.

Provisions of S.47, O. XXI, Rr.95, 100 & 103, C.P.C. did not require court to decide such petition always by recording evidence despite finding same to be frivolous and meant to delay and drag such proceedings

Determination of question whether or not recording of evidence would be necessary for deciding such petition would depend upon facts and circumstances of each case.

No such exercise had been undertaken which conclusively established that land against which decree was executed was in fact suit-land

High Court set aside impugned orders and remanded case to Executing Court for its decision afresh after affording opportunity to parties to lead further evidence, if any.