' SABIHUDDIN AHMED, J.---Through this petition under Article 199 of the Constitution the petitioner has called in question the order of the respondent No,1 dated 29-4-1999 in Execution Application No,74 of 1994, directing sealing of a mortgage property where the petitioner was allegedly residing as a tenant as well as the order dated 15-8-2000, rejecting his objection to the execution application.
2. The relevant facts appear to be that the respondent No,2 had filed a suit for recovery of money and foreclosure of mortgaged property belonging to the respondents Nos.4 and 5 against whose security such money was advanced to respondent No,3. Upon the suit having been decreed the respondent No,2 moved an application for sealing of the property under section 18 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, (The 1997 Act), whereupon sealing of the property including the part in possession of the petitioner as a tenant was ordered. The petitioners objection to the execution application were also rejected as mentioned above.
3. This petition was admitted for regular hearing and interim order restraining her dispossession was passed. Appearance was entered on behalf of respondent No,2 (decree-holder) by Mr. Haseebur Rehman Advocate, but he has not appeared for the last several dates of hearing. The respondents Nos.3 to 5 (judgment-debtors) could not be served in the ordinary course but were served through publication in Daily Dawn of 17th February, 2001. However, no one has entered appearance on their behalf either. Mr. Sami Ahmad, learned counsel for the petitioner has argued that the petitioner was lawful tenant of part of the mortgaged property and her tenancy rights were recognized even by the Honourable Supreme Court in its order dated 29-10-1987 in C.P.L.A.
No,97-K of 1987. He contended that a tenant acquires independent rights of residence in a rented premises protected by the Sindh Rented Premises Ordinance, 1979 and as such could not be ejected on account of a decree against his landlord. Learned counsel has referred to section 15(3) of the Financial Institution (Recovery of Finances) Ordinance, 2001, and its proviso clearly stipulate that only a right to recover 'rent and profit from mortgaged property stand transfer to a financial institution and mandates the tenant upon receipt of notice of demand to pay rent to the financial institution rather than the mortgagor/landlord.
4. Indeed learned counsel appears to be correct but in the instant case the impugned order was passed prior to enforcement of 2001 Act and at the time when 1997 Act was operating. That Act did not unfortunately contain a clear specific provision regarding rights and obligations of a tenant.
Nevertheless it might be appropriate to refer to section 18(3) of the 1997 Act which has also been relied upon in the impugned order dated 15-8-2000, which read as under:-- "Where the judgment-debtor or any person acting on his behalf does not voluntarily give possession of the mortgaged property sold, or sought to be sold, by the banking company under subsection (2), the Banking Court on the application of the banking company, or the purchaser shall put the banking company, or as the case may be, the purchaser, in possession of the mortgaged property in any manner deemed fit by it."
5. &reading of the above provision would show that a Banking Court or an auction-purchaser could be put in possession of the mortgage property only when judgment debtor or a person acting on his behalf does not do so. Obviously, as rightly suggested by learned counsel a tenant enjoys independent legal rights and cannot be treated as a person acting on behalf of the landlord/ judgment-debtor. It may also be pertinent to mention that unlike 2001, Ordinance, which overrides all other laws, 1997 Act by virtue of section 3 stipulated that its provision shall be in addition to and, save to the extent expressly provided in the Act not in derogation of any other law for the time being in force. In the circumstances we are inclined to take the view that in absence of any explicit provision the legislative intent could not be so construed as to deprive tenants of their rights to occupy property guaranteed under law. In view of the above this petition is allowed and the impugned orders are set aside.