MIAN HAMID FAROOQ, J.---Appellant/objector, through the filing of the instant appeal, has called in question order dated 23-2-2005, whereby the learned Banking Court dismissed his objection petition.
2. Pursuant to passing of the decree for recovery of Rs.71,85,020.50, against the respondents Nos.2 to 8, by the learned Judge Banking Court, the decree-holder/respondent No.1 initiated the execution proceedings, wherein property bearing No.45-A, New Civil Lines. Faisalabad was attached and a Local Commission was appointed. Seemingly aggrieved of the attachment order, the appellant filed the objection petition, inter alia, pleading that he is bona fide purchaser of the attached property for consideration and that the attachment order is ineffective qua his rights. The respondent-Bank resisted the said application and the learned Banking Court, in the ultimate analysis, dismissed the objection petition, vide impugned order dated 23-2-2005, hence the present appeal.
3. Learned counsel for the appellant has contended that the learned Banking Court. while dismissing appellant's objection petition, has relied upon section 18 of Ordinance XLVI of 2001. whereas the said provision of law has no applicability. He has added that the only plea of bona fide purchaser for consideration has not been adverted to by the learned Banking Court. Conversely, the learned counsel for the respondent-Bank has supported the impugned order.
4. In view of the arguments of the learned counsel for the parties, we have examined the impugned order and find that the learned Banking Court, while non-suiting the appellant has totally relied upon section 18 of Ordinance, XLVI of 2001. It would be appropriate to reproduce para.4 of the impugned order, which reads as follow:-- "After hearing both the parties and perusing the record the Court is of the opinion that the lady had executed personal guarantee while availing the loan facility as such under section 18 of Finance Ordinance, 2001 she is duty bound to keep intact her property for the satisfaction of the decree or if she wanted to sell her property she should obtain permission from the Court before selling the property. Since the lady has violated the mandatory provisions of law, therefore, the stand of the objector that he was defrauded cannot be looked into. He may avail his remedies against Mst.
Amtul Ghaffar. Even otherwise said Jamil should exercise proper care and caution before purchasing the property on the basis of principle of caveat emptor. In the circumstances, the objection petition having no merits is dismissed with no order as to costs"
It flows from the above that the learned Banking Court only on the basis of section 18 of Ordinance, 2001 has held that the guarantor is duty bound to keep in tact the property for the satisfaction of the decree. We have also examined section 18 of Ordinance XLVI of 2001 and find that the same relates to the banking documents. Said provision of law, inter alia, envisages that no financial institution shall obtain the signature of a customer on banking document which contains blanks in respect of important particulars including the date etc. Placing the facts of the case in juxtaposition with the provision of section 18 of Ordinance XLVI of 2001. the obvious conclusion, which can be drawn is that section 18 has no nexus with the presence case. The learned Banking Court has totally misconstrued section 18 of the Ordinance, which, as noted above, is neither attracted nor applicable in the present set of circumstances. Perusal of the impugned order manifests that the learned Banking Court, while passing the impugned order, did not at all read the said provision of law on the basis of which appellant's objection petition was dismissed. This shows the complete non-application of judicial mind. At least, the learned Banking Court, before passing the impugned order, ought to-have read the provision of section 18 and applied the correct law on the facts and circumstances of the case.
5. There is another aspect of the case. Although it was pleaded by the appellant in his objection petition that he is bona fide purchaser of property. yet the said plea was neither dealt with nor decided by the learned Banking Court. We see no findings in the impugned order regarding the plea of the appellant in respect of bona fide purchaser. The learned Banking Court ought to have dealt with the said plea and decided the same, either way, in accordance with law. This has further persuaded us to remand the case to the learned Banking Court.
6. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 23-2-2005 is set aside with no order as to costs. Resultantly, appellant's objection petition shall be deemed to be pending before the learned Banking Court, who shall decide the same, afresh, after hearing the parties and of course in accordance with law within a period of three months from the date of receipt of this order.