' MIAN HAMID FAROOQ, J.---Present appeal proceeds against order dated 3-2-2005, whereby the learned Judge Banking Court dismissed appellant's application, filed under section 47, Order XXI, Rule 58, C.P.C. Etc.
2. Precisely stated facts of the case are that respondent No, l's suit for recovery of Rs,4,73,569 was decreed, against respondents Nos.2 to 4, by defunct Banking Tribunal, vide judgment and decree dated 8-11-1995. Pursuant thereto the execution proceedings were initiated at the behest of the decree-holder bank, during which the mortgaged property could not be sold, however, the questioned property/house (constructed on Khasra No,2808), situated at Muridkey) was attached under the orders of the learned Executing Court. The appellants, reportedly, purchased the said house from Mst. Naseem Akhtar, the judgment-debtor, vide registered sale-deed dated 26-12-1997 for consideration of Rs,7,80,000 and the Mutation No,9860 was affected in their favour. The appellants then preferred two applications, one under Order XXI, Rule 90, C.P.C. And other for release of the property from attachment, before the learned Judge Banking Court. The learned Executing Court set aside the auction, however, appellant's objection petition was dismissed, vide impugned order dated 3-2-2005, hence the present appeal.
3. Learned counsel for the appellant has raised the following contentions:--
(i) although the mortgaged property is still available for the satisfaction of the decree, yet the respondent-Bank is not making any effort for the sale/auction of the mortgage property and instead thereof is trying to sell the house in question with inala fide intention;
(ii) the appellants are bona fide purchasers for consideration without notice, as such 'titled for protection under section 41 of Transfer Property Act;
(iii) learned Banking Court did not consider the documents on record, which clearly show that there was no entry regarding the attachment of the property in the Revenue Record;
(iv) objection petition has been decided without recording evidence of the parties;
(v) provisions of Order XXXIV, Rule 5, C.P.( were not taken into consideration.
' He has relied on the following judgments:-. 1987 SCMR 208 (no judgment); ' Ch. Muhammad Saleem v. Fazal Ahmad a d 2 others 1997 SCMR 315; ' Khair Din and another v. Mst. Zenab Bibi and 2 others PLD 1973 Lahore 586; ' Messrs State Associates v. Messrs Farben Industrial Development 1991 CLC 424.
' Conversely, the learned counsel for the respondents states that house in question was purchased by the appellants after its attachment by the Executing Court, therefore, the transfer is void. He further submits that under the circumstances, the appellants could not take advantage of section 41 of the Transfer of Property Act.
4. We have heard the learned counsel and examined the available record. It is evident from the available record, as rightly observed by the learned Judge Banking Court, that attachment, qua the questioned house, was made on 12-3-1997 and notices, under Order XXI, Rule 66, C.P.C., were issued. According to own showings of the appellants, they purchased the property from Mst.
Naseem Akhtar, one of the judgment-debtors, vide registered sale-deed dated 26-12-1997. It flows from the above that the property was purchased by the appellants after its attachment made under the orders of the Court. Section 64 of Code of Civil Procedure prohibits a private transfer or delivery of the attached property by the judgment-debtor after attachment has been made and all such transactions are void. As noted above, the alleged sale transaction, transfer and delivery of the property to the appellants were made after attachment of the property, therefore, in view of the aforesaid provision of law, as rightly held by the learned Judge Banking Court, the transfer is void.
Reference can be made to Messrs Ashrafi (Private) Ltd. Through Managing Director Sharafat Ali Abbasi v. Abdul Majeed Bawany through L.Rs, 1991 MLD 1101. Here it appears appropriate to reproduce a portion of judgment of the learned Executing Court, which really clinches the matter and reads as follows:-- "Section 64 of Code of Civil Procedure provides that:- "Where an attachment has been made and private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment."
' In the instant case, the attachment was made on 12-3-1997. Notice under Order XXI, Rule 66, C.P.C.
Was duly served and the postal receipt is dated 31-3-1997. Under the aforesaid provision of law, Mst. Naseem Akhtar-judgment-debtor could not sell the property after attachment of the same in favour of the applicants. The transfer is void. In this connection, the learned counsel for the decree- holder has rightly placed reliance on 1991 MLD Page 1101 wherein it was held that private alienation of the property after attachment would be void. In the circumstances, the applicants cannot take protection of section 41 of Transfer of Property Act. It may also be observed that the decree can be executed in any of the modes laid down in the Code of Civil Procedure. In this connection, the Executing Court is not restricted to the mode of execution as mentioned in order dated 8-11-1995.
The application has been filed to cause further delay in the disposal of the execution application."
5. Now coming to next contention of the learned counsel for the appellants, suffice it to say that under the present set of circumstances, provisions of section 41 of Transfer of Property Act are not attracted. Even essentials of section 41 of Transfer of Property Act, as laid down in the case of Ch. Muhammad Saleem (ibid) relied upon by the learned counsel for the appellants, are not attracted in the present case, inasmuch as Mst. Naseem Akhtar was not ostensible owner and she, in the capacity of real owner, sold the property to the appellants contrary to the express provisions of law.
Under the circumstances, we are of the view that the appellants cannot take shelter under section 41 of the Transfer of Property Act.
6. Learned counsel for the appellants could not point out any provision of law or case-law to support his plea that when the mortgaged property is available, then the decree-holder is bound, under the law, to firstly sell that property and thereafter to recover the decretal amount from the rest of the properties of the judgment-debtor. There is no cavil with the proposition that a decree can be executed through any of the modes laid down in the Code of Civil Procedure.
7. As regards decision of the objection petition without recording evidence of the parties. We feel that this was a fit case, wherein objections could be decided without recording evidence of the parties. It has been held in the case of Frasat Jabeen v. United Bank Ltd. Through Manager and 2 others 2004 CLD 1586 that Executing Court is under no obligation to mechanically record evidence of the objector in each and every case, however, it has to see in individual cases as to whether the objection petition could be decided without recording of evidence. In this case, we find that the learned Judge Banking Court has rightly decided the matter without recording evidence.
8. As regards judgments relied upon by the learned counsel for the appellants, suffice it to say that there possibly cannot be any cavil with the principles of law decided in the said judgment, however, those are not applicable in the present case.
9. In the above perspective, we have examined the impugned order and find that the learned Judge Banking Court, after taking into consideration all the aspects of the case, has decided the matter and the impugned order does not require any interference by this Court.
10. Upshot of the above discussion is that the present appeal is devoid of merits, hence the same stands dismissed with no order as to costs.