' MIAN SAQIB NISAR, J.---The objections filed by the respondent No,4 under Order 21, rule 100, etc. C.P.C., were allowed by the learned Executing Court, through the impugned order and the auction, as also the confirmation of sale of the Flat in question was set aside. Hence this appeal.
2. Briefly stated the facts of the case are that the appellant brought a suit for recovery, against the respondents Nos.1 to 3, before the Banking Court, which was decreed on 26-2-1994, to the tune of Rs.2,87,989 and this decree had attained the finality. The appellant initiated execution proceedings claiming that the decree be satisfied, through the sale of two mortgaged Flats bearings Nos.5 and 6, situated at Patiala Complex-2 Link McLeod Road, Lahore. Accordingly Flats were put to auction on 16-9-1994 and were purchased by respondent No,5, on the payment of auction money, the sale has been confirmed by the Court in favour of the purchaser. When the auction-purchaser moved an application for delivery of possession of the Flats; only the possession of Flat No,5 could be delivered, because the bailiff could not execute the warrant for the other flat, as respondent No,4, resisted the execution on the ground that he is the owner of the Flat which bears No,3 and not No,6 having been purchased by him through a registered sale-deed from the previous owner, not the judgment-debtor. He therefore, also on the basis of above, filed objection petition before the Executing Court. The objections were contested by the appellant and the learned Court after framing of the issues and recording of evidence, has held that the Flat mentioned in execution petition, bearing No,6, and was put to auction, is in fact Flat No,3 and is owned by respondent No,4, hence the sale with regard to such Flat was set aside and the bank was directed to refund Rs.1,50,000 the sale price of the said Flat to the auction-purchaser. The auction-purchaser has not come in appeal.
3. Learned counsel for the appellant contends that both the Flats were mortgaged with the appellant and the sale in favour of respondent No,4, was subsequent in time, therefore, said respondent No,4 could not seek the setting aside of the auction on the basis of such sale-deed.
4. We are afraid, this contention has no force, because according to the registered sale-deed, in favour of respondent No,4, he had purchased Flat No,3, which is not the one, shown as Flat No,6, in the execution petition. He was the owner of the said Flat in his own right, which is an independent property and could not have been sold in the execution. The learned Court below has reached to this conclusion on the basis of proper reading of the evidence on the record. The learned counsel for the appellant has not been able to show from any documentary evidence, including the mortgage documents, that the flat which is claimed by the respondent No,4, as his property, was in fact the one which was mortgaged with the Bank. No description or the boundaries equating the said flat with that of the respondent No,6, has been proved. Resultantly, this appeal has no force and the same is hereby dismissed.