' ANWAR ZAHEER JAMALI, J.---By this appeal under section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, order dated 4-5-2005 passed oy Banking Court No,3, Karachi, in Suit No,150 of 1995/Execution Application No,106 of 1999 has been assailed by the appellant. By this order, application under Order XXI, rule 58, C. P.C. Read with section 151, C.P.C. Moved by the appellant was dismissed by the Court, inter alia, for the reason that she had purchased the disputed property, through registered sale-deed executed by attorney of Behari Lal in her favour on 11-10-1997, while the property in question (bearing No,22-B, North Circular Avenue Phase 1, D.H.A.
Karachi) was already subject-matter of registered mortgage created by the J. D's in favour of decree-holder Bank on 4-4-1990, much prior to its purchase by objector.
2. Mr. Ziaul Haq Makhdoom learned counsel for appellant vehemently contended that the judgment followed by decree under execution, goes to show that Suit No,150 of 1995 was decreed on 23-9-1996, only for the recovery of Rs,1,870,986 with costs, therefore, it shall be presumed that the relief of final mortgaged decree in respect of property, bong Plot No,22-B North Circular Avenue Phase 1 Karachi, was declined by the Banking Court. He further made, reference to the provisions of Order XXXIV, rule 14, C.P.C. And contended that in such circumstances sale of mortgaged property by the decree-holder Bank through the process of the Court in terms of such decree is unwarranted by law, and they should have instituted another suit in terms of Order XXXIV, rule 14 for decree from the Court for the sale of the mortgaged property.
3. In reply, Mr. S. Salimuddin Nasir learned counsel for respondents has contended that in the judgment followed by decree under Execution, the relief of sale of mortgaged property was not refused by the Banking Court, therefore, decree was accordingly framed which contained the relief of sale of the mortgaged property also. Learned counsel also made reference to subsection (8) to section 6 of the Banking Tribunals Ordinance, 1984, which reads as under:-- "Where the claim filed before the Banking Tribunal is for the enforcement of a mortgage of immovable property, "decree" shall mean final decree for foreclosure, sale or redemption, as the case may be, as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908)."
4. Referring to the above provision of law, he contended that the decree passed by the Banking Court, by virtue of this subsection, is a final decree for sale of mortgaged property or its foreclosure or redemption in terms of Order XXXIV of the first schedule of the Code of Civil Procedure. Thus the argument on behalf of the appellant on such premises are entirely misconceived. In the end he also challenged the bona fide of the appellant's claim over the mortgaged property and in this context placed reliance upon the case of Industrial Development Bank of Pakistan through Deputy Chief Manager v. Saadi Asmatullah and others 1999 SCM R 2874. In this case making reference to the provisions of section 41 of the Transfer of Property Act, Honourable Supreme Court held as under:-- "Even if it is accepted that the disputed property had been purchased by the respondent No,1 for consideration, the remaining conditions are not satisfied. The property had been mortgaged and the documents of title had been deposited with the appellants. The respondent No,2 having already divested himself of the rights in the property after its mortgage, was neither the ostensible owner of the property in question nor express or implied consent of the appellants in this regard can be spelt out. As evidently the respondent No,1 had purchased the said property without even verifying the original documents of title, which were with the appellants, he cannot be said to be a transferee in good faith. An act is said to be done in good faith when it is done with due care and attention. Therefore, section 41 does not appear to be applicable in the present case."
5. We have carefully considered arguments advanced by the learned counsel, gone through the relevant provisions of law referred by them and perused other material placed on record. It has not been disputed by learned counsel for the appellant that the Banking Court while passing its judgment in Suit No,150 of 1995 has not refused the prayer of final mortgaged decree made in the plaint by the decree-holder Bank. Thus any conclusion to the contrary cannot be inferred from the language of such judgment, and preparation of decree by the office in line A of such judgment cannot be questioned on that account. Besides, provisions of subsection (8) to section 6 (supra) further clarify the position that passing of decree by the Banking Court, under the Ordinance of 1984, impliedly covered the final decree for sale of mortgaged property in terms of Order XXXIV, C.P.C. In other words by insertion of such provision of law in the Banking Tribunals Ordinance, 1984 the affect of Order XXXIV, rule 14, C.P.C. Has been diluted in the Banking cases.
6. On the merits of the case we find that the observations of the learned Banking Court Judge recorded in her impugned order are based on proper appreciation of record and thus unexceptionable. For the foregoing reasons we find no substance in this appeal which is accordingly dismissed.
7. At this stage learned counsel for the appellant has brought to our notice the contents of the mortgage deed dated 4th April, 1990 to show that the mortgage created through this deed is only to the maximum limit of Rs,12,00,000. Needless to observe that such objection, if raised, can be looked into by the Banking Court at the time of further proceedings in the execution application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.