MIAN HAMID FAROOQ, J.---Appellants/objectors,through the filing of the present appeal, have called in question order dated 17-9-2002, whereby the learned Judge Banking Court dismissed two applications, one filed by the judgment-debtors Nos.1 to 3 and the other by judgment-debtors Nos.2-A to 2-G.
2. Precisely stated the facts of the case are that respondent-Banks suit for recovery of Rs.31,94,337.83 was decreed by the learned tanking Court on :account of non-filing of application for leave to defend the suit, against appellants Nos.1 and 2 and respondents Nos.2 and 3, vide judgment and decree dated 16-11-2001, and against appellants No.3 to 9, vide separate judgment and decree dated 29-3-2002. Thereupon, the learned Banking Court initiated the execution proceedings and Court Auctioneer was appointed. During the execution process, the ,appellants filed two objection petitions, under section 47 read with seen= 151, C.P.C., together with an application for the stay of ultimately auction proceedings, which were resisted by the bank and the learned Banking. Court 'dismissed both the objection petitions, vide, composite impugned order dated 17-9-2002, hence the present appeal.
3. Learned counsel for the appellants has contended that 2185 bags of Basmati rice, each bag containing 100 Kgs. rice, were pledged with the Bank and the learned Executing Court failed to decide the question of pledged goods. He has further submitted that the said crucial question was not decided by the learned Banking Court at the time of passing of the decrees, as the suit was decreed against the appellants on account of non filing of leave application, He has added that the appellants were not allowed to lead evidence in support of their objection petitions.
Conversely,, the learned counsel for the respondent, while referring to certain letters, has submitted that even according to the stance of the appellants, they have taken the delivery of the pledged rice, therefore, they are precluded from agitating the plea qua the pledged goods before the learned Executing Court. He has further submitted that the present appeal is not maintainable under the.arises law, as it arises out of an interlocutory order. He has relied upon an unreported judgment titled "Raza Mehmood v. Union Bank Ltd.", passed in E.F.A. No.23 of 2003.
4. Firstly coming to the objection regarding maintainability of the appeal. Through the passing of- the impugned order, the learned Banking Court has dismissed two objection petitions, filed by the appellants. Section 22(6) of Ordinance -XLVI of 2001, inter alia, provides that no appeal, review or revision shall lie against an order accepting or rejecting leave application or an interlocutory order, ,which does not dispose of the entire case before the Banking Court other than an order passed under subsection (11) of section 15 or subsection (7) of section 19. It flows therefrom that the orders, which are passed either under section 15(11) or. 19(7), have been saved and thus if any order is passed under the said provisions of law, the appeal would be competent. In view whereof, we have examined the impugned order in juxta-position with the provision of section 19(7) of the Ordinance, 2001, and find that the learned Banking Court entertained appellant's objection petitions and proceeded to decide the same in exercise of powers conferred under section 19(7) of the Ordinance 2001, which deals with the investigation of claims and objections in respect of attachment or sale of any property. We are of the firm view that the impugned order was passed and falls within the scope of section 19(7) of the Ordinance and, therefore, the present appeal is competent under section 22(6) of the Ordinance. The objection raised by the learned counsel is without substance, hence repelled. The judgment, relied upon the learned counsel for the appellants, is not applicable in the facts and circumstances of the present case.
5. It appears from the record that appellant's plea regarding the pledged goods was neither dealt with nor decided by the learned Banking Court at any point of time, as the decrees, against the appellants, were passed at their back on account of non-filing the leave applications within the stipulated period. Of course the questions regarding the execution, discharge and satisfaction of the decree can be decided under section 47 of the Code of Civil Procedure. The learned Banking Court, while dismissing their objection petitions, has relied upon the letters (Annexures Q and R), wherein the judgment-debtors have allegedly admitted that they have taken delivery of the stocks, however, the appellants have specifically denied those letters labelling the same as forged and fabricated. Of course all these questions were to be decided by the learned 'Banking Court. We have perused the impugned order in juxta-position with the contents of the objection -petitions and find that as a matter of fact the pleas raised by the appellants were not properly and legally considered by the learned Banking Court in its true perspective. Additionally, the documents, produced 'by both the parties, in this regard, need to be deeply examined and -proved. The learned Banking Court, without holding an inquiry, examining, legality, validity and genuineness of the documents and in complete oblivion of the facts of the case, has rendered the impugned order. To our mind, the learned Banking Court in the circumstances of the case in hand could not have decided the objection petitions, unless and until reasonable opportunity for producing evidence was afforded to both the parties. We feel that this was a fit case in which the learned Banking Court ought to have investigated appellant's claims and decided their objections to the attachment and sale of the property by providing sufficient opportunity to the parties for establishing their respective claims through the production of evidence. It has been held in Mst.
Syrraya Begum v. Muslim Commercial Bank Ltd. and 4 others PLD 1990 Lahore 4 that "All claims relating to the rights, title or interest of the claimant or objector in the attached property has to be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest". It does not mean that the learned Executing Court is under an obligation to mechanically record the evidence of the objector in each and every case when an objection petition is brought before it. Of course, the learned Executing Court had to see in individual cases as to whether the case warrants the recording of evidence or not and that the objection application has been filed frivolously, contumaciously and to delay the proceedings or it is a genuine application. Primarily, it is the function of the Executing Court to decide as to whether the objection petition is to be decided after recording the evidence or only after hearing the parties. In the instant case, we feel that this was the fit case, where the parties should have been allowed opportunity to establish their respective claims, through production of evidence.
6. In the above perspective, we have examined the impugned order and find that the same suffers from legal errors/defects, the appellants have, in fact, been condemned unheard and thus, we are inclined to set aside the impugned order and to remand the case to the learned Banking Court.
7. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 17-9.2002 is set aside with no order as to costs. Resultantly, appellant's objection petitions shall be deemed to be -pending before the learned Banking Court, Gujranwala, which shall decide the same, after affording reasonable opportunities to the parties to produce their evidence to establish their respective claims, and of course in accordance with law, preferably within a period of four months from the date of the receipt of this order.