1. ' ARSHAD NOOR KHAN, J.---By this application under section 19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 (hereinafter referred to as 'Ordinance, 2001), the applicant has prayed for exclusion of property No,DP-24, admeasuring 1,000 square yards, situated in Small Industries Zone, Section 12-D, Karachi, from the schedule of the decree passed by this court.
2. ' The facts leading rise to the present application in brief are that the applicant claimed to be the owner of the aforesaid property, which he had rented out to defendant No,1, who was dealing in manufacturing towels and other hosiery articles. Defendant No,1 paid the rent to him in time for some time and thereafter he committed default, therefore, rent application against him was filed which was allowed by the Rent Controller and in pursuance of the decree passed in the Rent Case, the possession of the said property was delivered to him by the court. It is further stated in this application that defendant No,1 by way of fraudulent means mortgaged the property with the plaintiff-Bank and plaintiff-Bank without verification of the title documents, sanctioned the loan in favour of defendant No,1, but since the applicant is the owner of the property, therefore, he is not bound for any illegal and fraudulent act of defendant No,1 and had filed application before this court during the pendency of the suit, which was disposed of on 17-3-2006 with the observation that the applicant may file application under section 19 of Ordinance, 2001, after passing of the decree and presently the decree has been passed by this court, therefore, he has filed the present applicant.
3. ' The plaintiff has vehemently contested this application and has filed counter affidavit to this application taking, inter alia, the plea that the application is not maintainable in view of section 19 of Ordinance, 2001, as such the application is premature and is liable to be dismissed.
4. ' I have heard Mr. Shahnawaz Sahto, learned counsel for the applicant, and Mr. Abdul Sattar Lakhani, learned counsel for the plaintiff.
5. ' Learned counsel for the applicant vehemently contended that the applicant is the owner of the property in question and he possess the original documents of the same, but defendant No,1 fraudulently prepared certain forged documents and obtained the loan from the plaintiff-Bank and it was the duty cast upon the plaintiff-Bank to verify the title documents prior to pledge the said property and documents. It is further contended that vide order of this court dated 17-3-2006, he has filed the present application after passing of the decree, as such the application in any way could not be treated as premature and since the applicant did not mortgage the property by depositing the original title deeds with the plaintiff-Bank in favour of defendant No,1, therefore, his property could not be mortgaged or disposed of in pursuance of the decree passed by this court, as such the property belongs to the applicant may be excluded from the schedule of the decree.
6. ' Learned counsel for the plaintiff-Bank vehemently contended that the application is not maintainable for the reasons that section 19 of Ordinance, 2001 speaks about the proceedings in execution of the decree and that he has filed execution application separately, as such the applicant ought to have filed the present application in the proceedings of the execution application wherein the allegations regarding ownership of the applicant could be determined by the executing court.
7. ' I have considered the arguments advanced on behalf of the parties and have gone through the relevant laws on the subject.
8. ' Admittedly, the applicant has filed the present application under section 19(7) of Ordinance, 2001.
9. Section 19 along with its all subsections pertains to the procedure for execution of a decree passed by a Banking Court and the procedure provided under section 19 of Ordinance, 2001 is to be followed by the executing court in order to execute the decree passed by it. Subsections (7)(a), ibid, provides powers to the Banking Court to follow the summary procedure for the purpose of investigation of the claim and objections in respect of attachment or sale of any properly whether mortgaged, pledged or hypothecated or not and shall complete such investigation within 30 days of filing of such claim or objections. For the purpose of such powers and investigation, the provisions of Civil Procedure Code, 1908 have mutatis mutandis been made applicable to the proceedings in execution application. Order XXI, C.P.C. Relates to execution of decree. By application of Order XXI, C.P.C. In the Ordinance, 2001 for the purpose of execution of the decree, empowers the Executing Court to determine all the claims of the respective parties, in case, if the said party was not the party to the original proceedings of the suit or the decree was obtained by committing misrepresentation and fraud. The powers of the Executing Court, therefore, remain unfettered and vast to determine the respective claims of the aggrieved party at the time of execution of the decree. In the present case though section 19(1) of Ordinance, 2001 speaks that in the event of passing of the decree by the Banking Court, no separate execution application is required to be filed and the suit itself may be treated as execution application, but since the learned counsel for the decree holder has made a categorical statement that he has filed separate execution application, which is pending adjudication, as such without touching this aspect of the matter, which if dealt with at this stage, in absence of the original parties to suit would prejudice the case of either party. I' may observe that the present application is required to be filed in execution proceedings and since the separate execution proceedings are pending adjudication, the present applicant has all the rights and opportunities to avail it before the executing Court. The application filed by the applicant in the A present proceedings is, therefore, not maintainable.
10. ' For all the aforesaid reasons and circumstances I do not find any merit in the present application which is hereby dismissed with no order as to costs.