' MIAN HAMID FAROOQ, J.---Present appeal proceeds against order, dated 19-12-2005 whereby the learned Judge Banking Court, while allowing respondent's application, directed the Bailiff to deliver possession of the mortgaged property to the decree-holder.
2. Precisely stated facts of the case are that pursuant to passing a decree, dated 14-10-2005, for a sum of Rs,10,989,753 by the learned Judge Banking Court, against the appellant, the respondent- Bank/decree-holder, initiated execution proceedings for realization of the decretal amount. During the execution proceedings, the decree-holder bank filed the application under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance, 2001), with the prayer that the judgment-debtors be directed to hand over possessions of the mortgaged property to the decree-holder. The application was resisted by the appellant, only, mainly pleading that none of the provisions of law empowers the Banking Court to order for delivery of possession of the mortgaged property before auction to the decree-holder. Ultimately, the learned Judge Banking Court allowed the said application and directed that possessions of the mortgaged property be delivered to the decree-holder through the Bailiff, vide impugned order, dated 19-12-2005, hence the present appeal.
3. Learned counsel for the appellant has contended that the mortgaged property has not yet been sold, therefore, the learned Judge Banking Court under section 19 of Ordinance, 2001, has no jurisdiction to order for the delivery of possession to the respondent-Bank. Conversely, the learned counsel for the respondent No,1 has supported the impugned order.
4. We have heard the learned counsel and examined the available record. Section 15 of Ordinance 2001 deals with the sale of mortgaged properties. Section 15(6), inter alia, provides A that where mortgagor or any person, puts in possession by the mortgagor, does not voluntarily give possession of the mortgaged property sought to be sold, a Banking Court shall put the financial institution or purchaser in possession f the mortgaged property. It would be appropriate to rep duce relevant portion of section 15(6) of the Ordinance which reads as follows:--- "Section 15(6). Where the mortgagor or his agent or servant or any person put in possessions by the mortgagor or on account of the mortgagor does not voluntarily give possessions 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. (Underlining is for emphasis).
5. Section 19(5) of Ordinance, 2001 by refere no . Has incorporated certain provisions of section 15 and ma de them applicable to the sale of mortgaged property by the financial institution. If any case is needed, judgments reported as United. Bank Limited v. Defence Housing Authority through Secretary and another 2004 CLD 215 can be referred. Section 19 deals with "Execution of decree and sale with or without intervention of the Banking Court". Section 19(3) envisages that in case of mortgaged, pledged or hypothecated property the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court. Section l (5) of the Ordinance, 2001 provides that certain provisions of section 15, including subsection (6), shall apply to the sale of mortgaged, pledged or hypothecated property by financial institution in exercise of powers conferred by subsection (3). For ready reference aforesaid provisions are reproduced below:--- 19(3) "In case of mortgaged, pledged or hypothecated property, the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction of the decree. The decree passed by Banking Court shall constitute and confer sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose."
"19(5) The provisions of subsections (5), (6), (7), (8), (9), (10), (11) and (12) of section 15 shall, mutatis mutandis, apply to sales of mortgaged, pledged or hypothecated property by a financial institution in exercise of its powers conferred by subsection (3)."
6. In this case, the Bank is executing the decree through the intervention of the Court and during its process filed the application seeking possession of the mortgaged property. It flows from the joint reading of section 15(6) read with section 19(5) of Financial Institutions (Recovery of Finances)
Ordinance, 2001 (referred above), that a financial institution in order to succeed in its application for delivery of possession has to show that (i) the property is mortgaged, (ii) the mortgagor or his agent or servant or any person put in possession by a mortgagor does not voluntarily give possession of the mortgaged property; (iii) financial institution has sought sale or purchase or purchased the mortgaged property and that (iv) Banking Institution has filed the application for obtaining possession of such property. Upon the accomplishment of the aforenoted components the Banking Court shall put the financial institution or purchaser in possession of the mortgaged property. If all the aforenoted ingredients are in existence then the Banking Court is empowered to order for delivery of possession of the mortgaged property to a financial institution or purchaser.
7. Now coming to the facts of the present case in juxtaposition with the provisions of section 15(6), as noted above. We find that the decree-holder bank has been able to establish all the ingredients, as noted above, which are necessary for the exercise of powers by the Banking Court. If any or more of the aforenoted factors is lacking, then the Banking Court is divested to order for delivery of possession of the property sought to be sold. The property, whose possession is being claimed, in this case is a mortgaged property; mortgagor or any other person with the permission of the mortgagor is in possession of the mortgaged property; the person in possession of the property does not voluntarily give possession of the mortgaged property to the financial institution; the mortgaged property is sought to be sold by the financial institution and that the financial institution has filed the application seeking direction to the appellant for delivery of possession thus, all the ingredients, which are sine qua non for passing of order for delivery of possession, are in attendance.
8. The words used in section 15(6) "sought to be sold" are of great significance and is complete answer to the only contention raised by the learned counsel. Before passing order for delivery of possession, it is not necessary that the mortgaged property, must, had already been sold but it also includes the mortgaged property, which is yet to be sold and a financial institution seeks sale of the mortgaged property. In the case in hand, admittedly, the mortgaged property is under the process of sale and has not yet been sold. It cannot be construed under any stretch of imagination even from the plain reading of section 15(6) of Ordinance, 2001 that it only applies to the situation where the mortgaged property has already been sold. We are of the view that possession of the mortgaged property can be delivered, in case necessary components of section 15(6), as noted above, are attracted to a particular case even if mortgaged property has not been sold and it is proposed to be sold.
9. In the above perspective, we have examined the impugned order and find that although the learned Judge Banking Court did not discuss the aforesaid provisions of law and only after finding that the property is mortgaged property and if possession is not delivered, the property cannot fetch better price, proceeded to accept decree-holder's application, yet we feel that in pith and substance the impugned order is in accordance with law and thus, we are not inclined to interfere in the impugned order.
10. Upshot of the above discussion is that the present appeal is devoid of merits; hence the same stands dismissed leaving the parties to bearing their own costs.