Mian Hamid Farooq, J.--Present appeal, under Section 22 of the Financial Institutions (Recovery of Finance's) Ordinance, 2001 proceeds against order dated 1.6.2006, whereby the learned Banking Judge dismissed appellant's objection petition.
2. Precisely stated facts of the case are that respondent bank's suit for recovery of Rs. 17,45,266.37 was ex-parte decreed, against Respondent No. 2, by the learned Judge Banking Court, vide judgment and decree dated 19.2.1999 and during the execution proceedings, a portion of the decretal amount was recovered, however, it was reported by the decree holder bank that a sum of Rs. 12,74,426.82 is still outstanding against the Respondent No. 2. At one stage, the decree holder filed the application for the arrest and detention of the judgment debtor/Respondent No. 2. The learned executing Court, at the request of the respondent bank, attached Flat No. 18, 4th Floor Sharif Complex Main Market Gulberg, Lahore (the property). The appellant, then, filed the objection petition, claiming, inter alia, on the basis of PT-1 and the allotment letter issued by Haji Muhammad Sharif (Pvt.) Ltd, that he is the owner of the property and that judgment debtor has no nexus with it, however, the objection petition was dismissed by the learned Judge Banking Court, vide impugned order dated 1.6.2006, primarily, on the grounds that the appellant has not produced any document showing his title, allotment letter does not confer any right on him; it is not a title deed and that the petitioner is a nephew of the judgment debtor. Subsequently Haji Muhammad Sharif (Pvt.) Ltd. executed the sale-deed dated 17.6.2006 in favour of the appellant, which was registered with Sub- Registrar Lahore on 30.6.2006, photocopy whereof has been placed on record, hence the present appeal.
3. Learned counsel for the appellant contends that the attached property originally belonged to Haji Muhammad Sharif (Pvt.) Ltd., which initially issued allotment letter to the appellant and subsequently executed the sale-deed, thus the property never vested with the judgment debtor at any point of time. He has added that the property was got attached by the learned executing Court under the dis-information imparted by the functionaries of the respondent bank that property belongs to the judgment debtor. Conversely the learned counsel for the respondent has supported the impugned order submitting that the sale-deed, now produced by the appellant, is a forged document as the same was executed by the father of the petitioner in his favour.
4. We have heard the learned counsel and examined the available record. The appellant was non- suited by the learned Judge Banking Court mainly on the ground that he failed to produce any title document establishing his ownership qua the property. Now the appellant has produced the photocopy of the sale-deed dated 17.6.2006, registered with Sub Registrar Data Gunj Bux Town, Lahore, statedly executed by Haji Muhammad Sharif (Pvt.) Ltd in favour of the appellant. The impugned order was passed, on 1.6.2006 while the sale-deed was executed on 17.6.2006, thus the sale-deed was not in existence at the time of passing of impugned order and hence the same could not possibly be produced before the learned Banking Court. In view whereof, the learned Banking Court was right in holding that the appellant could not produce any title deed regarding the property.
5. Undeniably, the appellant is neither a mortgagor nor a guarantor nor a judgment debtor.
Admittedly, the property in question was not furnished as security for the re-payment of financial facility qua which the decree was passed. According to the available record, the judgment debtor, namely. Sh. Abdul Rashid, was not the owner or had any nexus with the property at any point of time. It is not the case of the respondent bank that the property was owned by the judgment debtor, who has subsequently transferred it in favour of the appellant. Simply to state that the sale- deed is a forged document does not in any way advance the case of the respondent inasmuch as the parties to the sale-deed are not the judgment debtors. The learned counsel for the respondent, when asked to demonstrate as to whether the judgment debtor had any nexus with the property in question at any stage, was unable to state anything except to unsuccessfully canvass that the property was transferred from father to son. Learned counsel, when further asked to show that on the basis of which material, the respondent Bank prayed for attachment of the property could not say much, however, stated of course, without referring to any document that the judgment debtor is the real owner of the property. The stance of the respondent Bank has little substance.
6. As noted above, the case of the appellant even does not fall within the scope of "Fraudulent transfer" as envisaged under Section 53 of the Transfer of Property Act, which inter alia, states that every transfer of the immovable property made with the intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditors so defeated or delayed. The respondent has failed to place on record any document to show that the property at any stage was transferred by the judgment debtor in favour of the objector.
7. We feel that had the said sale-deed be produced before the learned Judge Banking Court, the result might have been different. Seeing from any angle, the property was not liable to be attached and it was got attached at the behest of the decree holder and put to sale under misconception and dis-information.
8. In view of the above, the present appeal is allowed, impugned order dated 1.6.2006 is set aside with no order as to costs. Resultantly, appellant's objection petition stands allowed and the property in question is ordered to be released from attachment.