' MIAN SAQIB NISAR, J.---The instant appeal as also E.F.A. No,727 of 2001, are being disposed of together, as both involve common question of law and facts.
2. Despite citation in Nawa-e-Waqt for today, respondent No,2 is not present, therefore, he is proceeded ex parte.
3. The facts of E.F.A. No,702 of 2001, are that respondent/Bank brought a suit inter alia against respondent No,2, on 2T-7-1993, claiming that the said respondent through two equitable mortgages by deposit of title documents on 30-6-1986 and 26-8-1987, had mortgaged the, Plot No,19-A, situated at Nawab Town, Mouza Rakh Kyhamba. This suit was decreed in favour of respondent/Bank, but the decree is a simple decree for money and not a mortgage decree. In execution of the decree, plot in question is said to have been attached and put to auction, which has been purchased by respondent No,3; appellant filed objection to the auction on the' ground that respondent No,2, in fact had sold the said plot in favour of Ghulam Rasool, vide registered sale-deed, dated 21-2-1984, who had further alienated plot in favour of appellant on 24-6-1986, through a registered sale-deed thus at the time, when the mortgage is alleged to have been created, the suit property was not owned by the judgment-debtor; this objection petition through the impugned order, has been dismissed mainly on the ground of limitation.
4. Facts of other case E.F.A. No,727 are that the respondent No,2, allegedly had mortgaged the Plot No,28, the plot in favour of respondent/Bank by creation of equitable mortgage in 1987, which property after decree mentioned above, had been' put to auction on 23-4-1996 and was purchased by respondent No,7. The appellant claims that Saleh, defendant No,2, had sold the plot in favour of Ghulam Rasool respondent No,3 on 14-1-1987, through a registered sale-deed, who subsequently had transferred the same through sale-deed in favour of respondent No,4 on 9-5- 1988, whereafter, respondent No,5, purchased the property on 24-5-1995 and thereafter, transferred the same in favour of Barakullah vide registered sale-deed on 8-5-1988 from whom the appellant has purchased the property on 24-4-1997, thus in this case, at the time when the alleged mortgage was created by defendant No,2, in favour of respondent/defendant, he was not the owner of the property. Objection application in this case has also been dismissed by the Court mainly on the ground of being out of limitation.
5. Learned counsel for the appellant has argued that equitable mortgages can only be created by the owner of the property, whereas in the instant matter, respective judgment-debtors had sold away the property much before the alleged mortgage and therefore, under the law, they were not competent to have created the mortgage. This aspect of the matter was vital and the Court below without framing of proper issues and recording of evidence, has dismissed the objection petition mainly on the ground of being out of limitation, whereas the limitation was also the question of fact in the present controversy and thus could not have been resolved without proper trial.
6. We have heard learned counsel for the parties. Learned counsel for the respondent/Bank has not been able to show if the plots in question were owned by the judgment-debtor at the time of mortgage, he conceded that for the resolution of such dispute, issues should have been framed and evidence recorded. As regards the question of limitation is concerned, he has vehemently supported the impugned order and stated that the auction in this case has been made much before filing of the objection petition and on the face of it, the objections petitions were barred under Article 166 of the Limitation Act.
7. We have considered this argument and find that, if the objection petition under Order 21, rule 90 was out of limitation, yet in the circumstances, the case was covered under the provisions of section 47 of the C.P.C., for which limitation is governed by Article 181; this is only our tentative view and we are leaving this question also open for the Banking Court to decide after framing of issues and recording of evidence, as to at what point of time, the appellant got the knowledge of the auction and should have filed their objection petition and under what provisions, the objections could be entertained.
8. Argument of learned counsel for the auction-purchaser that the property had been purchased by the present appellant after the sale having been confirmed in favour of respondent and possession was also delivered, suffice it to say that the effect of the above shall also be determined by the Banking Court.
' In the light of above, both the appeals are allowed; the impugned orders are set aside. The Banking Court is directed to decide the objections of the appellants