SYED JAMSHED ALI, J.- The order dated 29.3.2000, passed by the learned Judge, Banking Court-II, Gujranwala, passed in execution proceedings, has been assailed in this appeal, It arises out of the following circumstances.
2. Suit filed by Muslim Commercial Bank Ltd., respondent No. 1, for recovery of an amount of Rs.
78,79,753.81, against the appellant and respondents Nos. 2 to 10 was decreed ex parte vide judgment dated 11.11.1998. The efforts of some of the defendants (which did not include the appellant), for setting aside the aforesaid decree failed. The decree-holder-bank initiated execution proceedings by attachment and sale of the property of the judgment-debtors. Plot of land measuring 24 marlas, described as No. 283-G, Uggoke, Model Town, Sialkot, mortgaged by the appellant and a residential house bearing No. B-1-4S-6 with the Municipal No. 2/427 statedly belonging to Mst. Aqila Irshad, one of the judgment-debtors, were, inter alia, attached and sold.
There is no dispute about plot No. 283-G, but is confined to property No. B-1-4S-6. It was sold through public auction on 27.7.1999 in favour of respondent No. 11, the sale confirmed on 13.8.1999 and the sale certificate issued to respondent No. 11 on the same date. On 14.3.2000, a warrant for possession was issued and on the basis of the report of the Bailiff, "Qufal Shikni", of the house was directed by the learned Executing Court vide order dated 24.3.2000. On 28.3.2000, the appellant made an application with the contention that he was the owner of the house and Mst. Aqila Irshad had a small share in that house which she had mortgaged, the sale certificate was got issued by fraud, It was prayed that warrant for possession may be recalled and instead of the whole house, decree may be directed to be executed to the extent of the share of Mst. Aqila Irshad, Judgment- debtor, in the said house. This application was dismissed by the learned Executing Court vide order dated 29.3.2000 with the observation that he could not review the order dated 13.8.1999 of his predecessor. The appellant' was, however, granted three weeks time to get his grievance redressed from the superior Court, if so desired. This order has been assailed in this appeal.
4. The learned counsel for the appellant submits that the house in question was owned by Iqbal Hussain, who had two wives namely, Farhana Mumtaz and Mst. Balqees. From Mst. Balqees there were two sons and two daughters namely Mst. Farkhanda and Fahmeeda. On the death of Iqbal Hussain, the house in question developed upon his aforesaid legal heirs. The case of the appellant is that vide registered sale-deeds dated 12.4.1988 and 26.9.1988, he had purchased 10 marlas from all the children of Mst. Farhana Mumtaz, while through registered sale-deed dated 27.10.1987, Mst.
Aqila Irshad, had purchased 1/10 share in the said house, the total area of which is 21 marlas, from Fehmeeda Kausar, a daughter of Iqbal Hussain from Mst. Balqees. On 24th February, 1997, she had created a mortgage by deposit of title deeds in respect of her share in said property. Therefore, only the share of Mst. Aqila Irshad, the judgment-debtor, in the said house, could be put to auction.
His further contention is that the plot of land measuring 24 marlas was mortgaged by the appellant with the decree-holder bank which was sold for Rs. 2,60,000/- while he stood surety to the extent of Rs. 1,32,000/- only. Since he was arrayed as defendant in the suit as guarantor, his liability did not exceed Rs. 1,32,000/-. Therefore, his share in the disputed property could not have been sold. He contends that the decree-holder Bank got the order of attachment and sale of the house by misrepresenting that Mst. Aqila Irshad was the owner of the entire house although copy of the sale-deed in favour of Mst. Aqila Irshad as well as the document evincing deposit of title deeds by her were on the record of the learned Trial Court. The learned Executing Court did not examine even the admitted documents and proceeded to direct the sale of the entire house.
5. Mr. Mushtaq Mehdi Akhtar, Advocate, who represents the auction purchaser has opposed this appeal. His first objection is that this appeal is directed against an interim order whereby the application of the appellant for recalling the warrant for possession was dismissed and, .Therefore, it is not appealable in accordance with the provisions of Section 21(6) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (No. XV.1997), and does not fall under Section 18(6) of the said Act either, It is next contended that the appellant was a judgment-debtor and in accordance with the terms of the decree, it could be satisfied from his personal property as well, although, not mortgaged. He maintained that the appellant did not seek any remedy against the ex parte decree, did not even object to the attachment or sale of the disputed property and unless the decree was set aside the appellant was not entitled to any relief. He submits that the appellant did not make an application either under Order XXI, Rule 89 of the Code of Civil Procedure for getting the sale annulled. Reliance was placed on Al-Saeed Resin (Pvt.) Ltd. Vs. Trust Madarabia through Trust Management Service Pvt., Lahore (2003 CLD 457).
6. The submissions made by the learned counsel for the parties have been considered and the record of the learned Banking Court examined. Perusal of the plaint shows that the appellant was impleaded to the suit as a guarantor with the averment that he had mortgaged his plot of land measuring 24 marlas. We have perused the copy of the mortgage deed placed on the record in respect of this plot. A specific covenant therein restricted the liability of the appellant to a maximum amount of Rs. 1,32,000/-. The appellant had not incurred any personal liability, he was arrayed in the suit as a co-defendant only as a guarantor and, therefore, his liability did not exceed beyond the terms of the guarantee. The sale-deed in favour of Mst. Aqila Irshad is also on the record of the learned Banking Court, It clearly shows that she had purchased 1/10 share in the house vide registered sale-deed No. 5428 attested on 27.10.1987 and this document was specifically mentioned in the memorandum of deposit of title deeds. Therefore, as far as the- disputed property is concerned, a mortgage was created by Aqila Irshad only to the extent of 1/10 share in the disputed property and nothing beyond it. Notwithstanding this undisputed fact, the decree-holder Bank sought attachment and sale of the entire house which was sold and even a sale certificate issued in favour of respondent No.1. Except 1/10 share in the disputed property neither it was mortgaged nor the appellant had created encumbrance on his share in the said property. Therefore, the sale of appellant's share in the disputed property and sale certificate were wholly void.
7. It was not, in fact, a case of the review of order dated 13.8.1999, the sold ground to dismiss appellant's application. The appellant had invited attention of the. Learned Banking Court to a patent illegality amounting to fraud that the entire house was sold on the initiative of the decree- holder Bank as if the entire house belonged to Mst. Aqila Irshad, although the facts established on the record, even through the documents submitted by the decree-holder Bank, were to the contrary as noted above. Not only the decree-holder bank, procured the sale of the entire house by misrepresentation but it is a case, in which the Court had. Also committed an error apparent on the face of the record. In the facts established on the record, the learned Executing Court was under a duty to have retraced its wrong step without any constraints. A Court must see that the rules of procedure are not allowed to operative as a tyrant master so as to perpetuate an illegality committed by the Court itself.
8. The contentions of the learned counsel of the auction purchaser have been considered: According to Section 21(6) of Act No. XV of 1997, an appeal does not lie against an interlocutory order. But as far as the application of the appellant objecting to the sale of disputed property is concerned, its dismissal was a final order. Even according to Section 21(6) of the said Act, an appeal lies against the order passed under Section 18(6) of the said Act. Clause (a) of sub-section
(6) of Section 18 contemplates investigation of claims and objections in respect of attachment or sale of any property whether mortgaged or hot. The application of the petitioner clearly fell within the scope of Clause (a) of Section 18(6) of XV of 1997 and an order passed therein was appealable.
9. The next contention of the learned counsel that since the decree was against the person and the property of the appellant his share in the house could be attached and sold, has no merit. The decree has to be interpreted in the light of the averments of the plaint in which the liability was fixed on the appellant to the extent of the property mortgaged and for a determined amount, It has not been the case of the Bank that the appellant had incurred any liability in his personal capacity other than as a guarantor. The inaction of the appellant not to seek setting aside of the decree or to take any steps against the attachment of the disputed property, could not deprive him of his property particularly in view of the fact that he, stood surety for a maximum amount of Rs.
1,32,000/- and by sale of his plot of 24 marlas an amount of Rs. 2,60,000/- had already been realized. We may like to observe that while a litigant is required to be vigilant, an Executing Court is also not absolved of its duty to ensure that the property being sold could be lawfully put to sale. We may add that the application moved by the appellant did not attract Rules 89 or 90 of Order XXI of the Code of Civil Procedure, it squarely fell under Section 47 of the C.P.C, because it related to execution, discharge and satisfaction of the decree.
10. For what has been stated above, we allow this appeal, set aside the sale in favour of respondent No. 11 along with the sale certificate in respect of the disputed property. The decree-holder Bank shall be at liberty to seek execution of the decree to the extent of the share of Mst. Aqila Irshad, the judgment-debtor, in the disputed property. The decree-holder bank shall refund the sale proceeds of the house to the auction purchaser.