' SYED HAMID ALI SHAH, J.---The applicant is a tenant in possession of the property commonly known as House No,E-9/A, Street No,7, Ali Lane, Cavalry Ground, Lahore. The house was mortgaged by respondent No,3, Mrs. Nuzhat Firdous to secure loan from respondent No,2 (HBL). Respondent No,3 failed to liquidate the liability which resulted into filing of the suit by respondent No,2, which was decreed on 29-3-2003. Respondent No,2 filed an application in this Court (C.M. No,290-B of 2004) for delivery of possession of the mortgaged property. This Court acceded to the request of the decree-holder and ordered on 22-11-2004, for the delivery of possession of the property to the decree-holder. The bailiff delivered the possession to the decree-holder on 6-12-2004. The applicant after having been dispossessed from the premises, filed an application under Order XXI, rules 96 and 103, C.P.C. For restoration of possession to him.
2. The applicant in order to prove his occupation of the premises, placed on record utility bills, notice issued by the Cantonment Board and letters received at the premises.
3. Learned counsel for the applicant has submitted that the suit property has been purchased by him from respondent No,3, through a sale-deed dated 23-10-2004 against a consideration of Rs,11,50,000. The sale was duly registered with the Sub-Registrar. The applicant verified from the Revenue Record and procured non-encumbrance certificate. Mutation on the basis of sale deed was also sanctioned in favour of the applicant. All necessary inquiries were made before the registration of sale-deed. Learned counsel has further contended that the applicant had no knowledge about the mortgage of the disputed property or about any defect in the title of the property. He has further contended that he purchased the property after issuance of non- encumbrance certificate dated 15-10-2004 and its possession was handed over to him by the vendor. He has added that the applicant is an old retired man, who has spent life long saving for the purchase of the property in dispute. The applicant is a bona fide purchaser and resultantly is entitled to a declaration to this effect and entitled for restoration of possession to him. The learned counsel has conceded that the applicant appeared in this Court on 10-12-2004 and undertook before the Court, that he is a tenant in the property and shall vacate the same by or before 7-1- 2005. He explained that this undertaking does not create the bar of estoppel as there is no estoppel against the statutory rights of the applicant. In support of his contentions, he has placed reliance on the following judgments:-- "Waris Ali Khan Khattak v. The University of Karachi" PLD 1956 Karachi 155; "Ch. Rehmat Ali v.
Custodian Evacuee Property" PLD 1966 Karachi 31; "Khan Azizul Hassan Khan v. Haji Muhammad Ismail" PLD 1972 Lahore 142; "The District Magistrate Lahore v. Faqir Sayyed Fayyazuddin" PLD 1965 SC 371; "Abdul Rehman Bepary v. Gulapuddin Bepary" PLD 1970 Dacca 876; "Ikram Bus Service and others v. Board of Revenue" PLD 1963 SC 564; "Gulam Sarwar v. Manager Muslim Commercial Bank Ltd." PLD 1984 Peshawar 22 and "Aziz Ahmad v. Secretary Regional Transport Authority" PLD 1984 Quetta 106.
4. Learned counsel for the decree-holder, on the other hand, has submitted that the property is admittedly a mortgaged property and has been sold through auction. He further submitted that the applicant has earlier based his claim on the plea that the mortgaged property is possessed by him as tenant and now he has come forward with another plea of being purchaser of the property.
It was lastly contended by the learned counsel for the decree-holder that the petitioner has undertaken before the Court unconditionally to vacate the premises on a certain date, which is sufficient to prove that if at all the applicant has any right, the same has been waived since the applicant has given a valid undertaking to the Court. He added that there is no room open for the applicant to raise the claim under reference through the instant applicant.
5. Heard learned counsel for the parties and perused the record.
6. The sale-deed dated 23-10-2004 has been executed subsequent to the decree which was passed against respondent No,3. Any sale subsequent to the decree by a mortgager is void. The property has allegedly been sold during the period when the Financial Institutions (Recovery of Finances) Ordinance, 2001 was enforced, as such the sale is a void sale, by virtue of the provisions of section 23 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Relevant part is reproduced hereunder:-- "23..... (1)....
(2) After pronouncement of judgment and decree by the Banking Court including an interim decree under section 11, no judgment-debtor shall without the prior written permission of the Banking Court transfer, alienate, encumber or part with possession of any assets or properties and any such transfer, alienation, encumbrance or other disposition by a judgment-debtor in violation of this subsection shall be void and of no legal effect."
7. The purchase of the mortgaged property by the applicant under section 23 (ibid) is void. The object of agreement of sale under reference under section 23 of the Contract Act, 1872 is void, for it defeats the provision of law. Additionally the applicant had given undertaking to the Court on 10- 12-2004 to vacate the premises thus, if at all the applicant had any rights with regard to the property in question, the same stand waived. This application is without any merit and has been filed to delay the proceedings, which have already taken a long course. This is as such dismissed.