' SYED ZAHID HUSSAIN, J.---Application/objection filed by the appellants has been dismissed by the learned Judge Banking Court No,4, Lahore on 25-6-2003. This is appeal there against.
2. In the suit for recovery filed by the respondent/ decree holder Bank the decree was passed on 8- 7-2002 against respondent No,3, the judgment debtor. In execution of the said decree property No,98-H-III, Model Town, Lahore, measuring 1-Kanal, 6-Marlas (the mortgaged property) was put to auction on 12-5-2003 which was purchased by respondent No,4, by offering highest price of Rs.32,00,000 as against the reserve price of Rs.30,00,000 statedly the auction was confirmed by the Court the sale certificate and the warrant for possession had also been issued by the Court. An application under section 151 of the Code of Civil Procedure, 1908 was filed by the present appellants claiming that they wen vendees of the property for valuable consideration in good faith.
Another application for setting aside the auction had also been filed by them. The decree-holder and the auction purchasers contested the same. After hearing the parties and considering their respective pleas the learned judge Banking Court No,4, Lahore came to the conclusion that the sale claimed to have been made in their favour ur had been "brought about in collusion with JD who supported them at the bar". This is vide order dated 25-6-2003.
3. The learned counsel for the appellants contends that since the judgment-debtor namely Muhammad Amjad was not owner of the property in dispute on 17-9-1995 when the property was mortgaged with the decreeholder/Bank the mortgage itself was illegal and invalid. In order to show that the appellants were bona fide purchasers for valuable consideration, it is pleaded that they had taken all possible steps including the inspection of the record of Model Town Cooperative Society. Share certificate and obtained NOC from that society before the sale-deed dated 24-11- 1999, which was executed by Muhammad Amjad in favour of the appellants. It is contended that the suit was filed on 7-11-2001 wherein the decree was granted on 8-7-2002 and on the date of sale in favour of the appellants there was no such suit pending and since the appellants had become owner of the property it could not be sold in execution of the decree. He has attempted to show that the suit was time-barred, which should have been dismissed by the Court as such. According to him all such aspects of the matter have not been considered by the learned Judge Banking Court, while dismissing the application of the appellants.
4. The learned counsel for the decree-holder/Bank has on the other hand contended that it was an equitable mortgage, which was created in favour of the decreeholder/Bank by the borrower/judgment-debtor who deposited the original title documents of the property with the Bank, which are till date in custody of the Bank. According to him, not only that the mortgaged was valid in law, the borrower/mortgagor never objected to the same and the appellants have no locus standi to agitate either about the legality of the mortgage or the decree passed by the learned Banking Court. It is contended that the Court cannot go behind the decree at the stage of execution. It is pointed out that before putting the property to auction due publicity was made by the executing Court and proclamation was issued in the daily "Din" for that purpose. Reference has also been made by him to section 53 of the Transfer of Property Act, 1882 to contend that the appellants and the judgment-debtor have colluded with each other to defraud and defeat the interest of the decreeholder/Bank by joining hands and preparing sale-deed dated 24-11-1999.
Principle of estoppel is also invoked by him on the strength of illustration to Article 114 of Qanune- Shahadat, 1984. He has placed reliance upon Muslim Commercial Bank Limited v. Messrs Malik & Company through Proprietor. Malik Naim Ahmad and 2 others 2002 CLD 606; National Bank of Pakistan v. Messrs M.M. Agencies and 5 others 1991 CLC 1763; Zarif Khan and others v. Muhammad and others PLD 1983 Peshawar 58; Messrs United Bank Ltd., Karachi v. Mst. Asma Zafarul Hassan 1980 CLC 565 and Alamanayakunigari Nabi Sab v. Murukuti Papiak and others AIR 1915 Madras 972.
' The learned counsel for the auction purchaser states that his client has indeed purchased the property in Court auction, which was made after due publicity who has paid the entire price but has not been delivered the possession so far. According to him the appellants cannot be regarded as bona fide purchasers as the original title documents are with the creditor/Bank. Reference has been made by him to Mst. Nasiban Bibi v. The Australasia Bank, Lahore and 2 others 1970 SCM R 657 and Muslim Commercial Bank Limited v. Syed Ataullah Shah and 2 others 2003 CLD 888.
5. The respective contentions of the learned counsel for the parties have been considered in the light of the record, which has been perused by us. There is no denial of the fact that Muhammad Amjad had availed the financial facilities from the decree-holder/Bank and as security had deposited original title deeds wi I the respondent-Bank. Upon a suit for Recovery No,8 of 1999 a decree was passed on 25-2-1999 whereas in Suit No,155 of 1997 the plaint was rejected by the learned Banking Court. However, after remand by the Appellate Court the suit was withdrawn on 11- 7-2001 in order to file a fresh one and eventually Suit No,126 of 2001 was filed on 7-11-2001 in which decree dated 8-7-2002 was granted. The said decree admittedly has attained finality and it was thus that the mortgaged property was sold in execution thereof through open auction in which respondent No,4, offered the highest price of Rs.32,00,000 which was accepted and the sale was confirmed. The total price was paid by him and sale certificate was also issued to him. The contention of the learned counsel for the appellants impugning the validity of the mortgage has no tenability as the appellants have no locus standi to agitate this matter nor in the process of execution of the decree the Court can go behind the decree. In so far as the contention of the learned counsel or the appellants as to the inspection of the relevant record s that the property was free from encumbrances and the appellants purchased the same in good faith is concerned, it has no substance inasmuch as that had the appellants made due inquiry and demanded the title documents of the property from the respondent/judgment-debtor they would have learnt of the mortgage and would not have gone ahead for the purchase of the same. Admittedly the original title documents are still lying with the respondent/decreeholder/Bank. In 1970 SCM R 657 (supra) it was observed that "The High Court has held that the petitioner should have made further enquiries and asked for title deed of the house from the vendor which would have revealed the real position that the title deed had been deposited with the view to create an equitable mortgage on the house. We agree with the view of the High Court that the plea of bona fide purchase was not placed on a sound footing as the inquiry made by the petitioner about the title of the suit house should not have been merely confined to the examination of the revenue papers. As the property concerned was an urban immovable property, the inquiry should have been extended to a demand for the title deed which would in this case have revealed the real position that the house was subject to an equitable mortgage in favour of the respondent-Bank." The observations are aptly invocable to the facts and circumstances of the present case. In dismissing the application filed by the appellants the learned Judge Banking Court No,4, .Lahore has acted in consonance with the law. No illegality has been committed in passing the impugned order.
' As a result of the above, we find no merit in this appeal, which is dismissed accordingly.
' After that the order of dismissal of the appeal had been announced the learned counsel for the appellants requested for a reasonable time to be given to the appellants for vacation of the house.
With the concurrence of the learned counsel for the parties two months time is given to the appellants for this purpose. No order as to costs.