The respondent No.1/Bank, brought a suit for recovery against respondents Nos.2 to 6 before the learned Banking Tribunal in the year 1986. The subject 'matter of the suit involved the property in question, which was equitably mortgaged by one of the defendants as a security for refund of the finance. This suit was decreed in the year 1999 and the decree was to be satisfied on the basis of inter alia the sale of the property in question, when the present appellants, moved an application under Order XXI, rule 58, C.P.C., challenging the Court auction on the ground that they have purchased the property from the judgment-debtors in the year 1985 through registered sale- deeds and had raised construction thereon; they were unaware of any alleged mortgage. This application was dismissed by the learned Executing Court vide order dated 14-7-2003. This order was not further challenged, when an other application under section 12(2), C.P.C. has been filed by the appellants, which has been disallowed by the learned Court below through the impugned order dated 24-9-2003.
2. The learned counsel for the appellants contends that, the equitable mortgage could not be created under section 58-F of the Transfer of Property Act , because such provisions have not been made applicable to Punjab. It is further contended that, the equitable mortgage should have been only through the registered document as required under section 17 of the Registration Act. Lastly it is submitted that, the appellants were the bona fide purchasers of the property having no knowledge of any equitable mortgage in favour of the respondent-Bank.
3. We have heard the learned counsel for the parties. Without going into the question of maintainability, because the present appeal, to our mind, is not maintainable, as the order of Court below passed under section 12(2), C.P.C. is not even appealable under the Civil Procedure Code, yet we are deciding the case on merits and find no force in the arguments of the learned counsel for the appellants. The equitable mortgage, irrespective of the registration, can be validly created and though section 58-F of the Transfer of Property Act, has not been specifically made applicable to Punjab, yet the principles of equity are recognizable and duly applicable thereto. Resultantly, there is no requirement that a mortgage created through equitable means, shall necessarily be registered under section 17 of the Registration Act. The last submission, that the appellants are bona fide purchasers, when confronted, the learned counsel for the appellants has not been able to cite a single judgment akin to the facts of the case, particularly when the mortgaged property has been purchased during the pendency of the litigation and there is a valid equitable mortgage created, that a defence can be taken by the subsequent purchaser of being bona fide. The rule of bona fide purchaser is not applicable to the facts and circumstances of the case. Resultantly, this appeal has no merits and is hereby dismissed.