' This appeal is directed against the order dated 13-12-2005 passed by learned Judge Banking Court No,3, Lahore, whereby application brought by respondents for restoration of possession was accepted.
2. Relevant facts for the disposal of this appeal are that appellant filed suit against the respondents and the same was decreed to the extent of Rs,33,16,941.55 vide judgment dated 23-7-1995.
However, judgment-debtors failed to pay decretal amount, therefore, appellant filed execution petition. During execution proceedings learned Executing Court attached the properties mortgaged by the judgment-debtors. Later on the appellant/decree-holder filed application for attachment of land measuring 18 Kanals, Khewat No,77, Khatuni No,235 Khasra No,58 situated behind Police Station, Jhal Chakian District Sargodha along with building and machinery, which was attached and possession of the same was delivered to the decree-holder on 29-9-2005 through bailiff of the Court. The respondents filed application for restoration, of possession on the grounds that property in question had never been mortgaged and that actually bailiff delivered possession of land bearing Khewat No,67 Khatuni No,204, Khasra No,58. Also that properties earlier mortgaged by the judgment-debtors had been attached and decree could be satisfied after the sale of the same. The judgment-debtors also gave undertaking not to sell the property in question and to settle the accounts. After hearing the parties, learned executing Court accepted the application brought by judgment-debtors/respondents vide order dated 1,3-12-2005. Hence this appeal.
3. We have heard the arguments and perused the record.
4. As mentioned above decree for recovery of Rs,33,16,941.55 was passed in favour of the appellant.
Admittedly some properties were mortgaged by the judgment-debtors and the same have earlier been attached during execution proceedings. Learned counsel for the appellant admits that property in question was not mortgaged by the respondents. It would be appropriate to reproduce section 15(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001 from which whole controversy resolves:-- ' S.15(6) "Where the mortgagor or his agent or servant or any person put in possession by the mortgagor or an account of the mortgagor does not voluntarily give possession of the mortgaged property sought to be sold or sought to be purchased or purchased by the financial institution, a Banking Court on application of the financial institution or purchaser shall put the financial institution or purchaser, as the case may be, in possession of the mortgaged property in any manner deemed fit by it: ' Provided that the Banking Court may not order eviction of a person who is in occupation of the mortgaged property or any part thereof under a bona fide lease, except on expiry of the period of the lease, or on payment of such compensation as may be agreed between the parties or as may be determined to be reasonable by the Banking Court."
Upon the examination of the afore-stated provisions of law, we find that, under that, a decree- holder can only get possession of a property, which was mortgaged in his favour by a judgment- debtor. As noted above, the property in question was not mortgaged at any point of time, therefore, there was no legal justification for delivering the possession of the property to the decree- holder/appellant. It appears that learned Judge Banking Court while delivering the possession to the appellant was completely oblivious to the said legal position. Even otherwise judgment- debtors had already mortgaged their properties and the same have been attached during execution proceedings,. Therefore, it was proper to sell the same and recover the decretal amount.
It is pertinent to note that respondents/judgment-debtors have also given undertaking to settle the accounts and they have not raised objection regarding attachment of property in question. In para. No,4 of impugned order learned trial Court observed that learned counsel for the judgment- debtors have given undertaking that:- "(a) The property attached be kept under attachment.
(b) The mortgaged properties be sold first.
(c) If the decretal amount is not satisfied, the attached property be put to auction as per rules.
(d) The bailiff of the Court has already prepared an inventory of the machinery etc. Which is available at the site of attached property is not disputed.
(e) The property attached and the building, machinery etc. Will not be alienated by the judgment- debtors Nos.1, 2, 4 and 5.
(I) The account will be settled with the bank and payments shall be made."
' So in the circumstances of the case, we find that impugned order is just and proper. There is no illegality or infirmity in the impugned order, therefore, there is no justification to set aside the same.
However, respondents/ judgment-debtors would be bound by their undertaking given before learned Executing Court. Appeal stands dismissed.