' CH. MUHAMMAD TARIQ, J. ---This FAO has been directed against the judgment and decree dated 3-12-2005 passed by learned Judge Banking Court No,11, Lahore.
2. Facts leading to the filing of this FAO are that respondent No,1 (Bank of Oman) filed a suit against respondents Nos.2 to 11 for the recovery of Rs,1,67,59,820.45 on 20-7-1992. The learned Banking Tribunal vide order dated 17-6-1993 directed the defendants to deposit Rs,139,66,517.45 within a period of 15 days. As the order dated 17-6-1993 was not complied with, a decree dated 29-8-1993 was passed against judgment debtors with costs with the direction that the decree in the first instance shall be executed by sale of the property mortgaged with the respondent-plaintiff bank.
3. The respondent bank filed an application on 23-4-1998 under Order XXI, Rule 10, C.P.C. For execution of the decree by way of sale of the mortgaged properties. Accordingly, the property measuring 17 kanals, 2 marlas comprising Khasra Nos.1262 and 1265 Khewat No,521, Khatooni Nos.1241 and 1249 situated in the Revenue Estate of Mauza Mahmood Booti, Tehsil and District Lahore was auctioned on 7-5-2003 which was purchased by Muhammad Ilyas/respondent No,12 against sale consideration of Rs,3,20,000 and accordingly, possession was delivered to respondent No,12 on 31-8-2004.
4. The appellants who claimed to be the bona fide purchasers/ owners of the suit land filed objection petition dated 7-9-2004, objected to the auction dated 7-5-2003 and prayed for restoration of possession of their property which was dismissed vide impugned order dated 3-12- 2005. Hence this FAO.
5. Learned counsel for the appellants inter alia contends that the suit property was never mortgaged with the bank by the appellants who are the owners of the suit property. Actually, Mian Muhammad Siddique/respondent No,6, from whom the appellants purchased the land vide mutation deed dated 28-11-1982, mortgaged the suit property with the respondent bank in 1987 fraudulently. As Mian Muhammad Siddique had already sold the suit property to the appellants in the year 1982, sale deed in this regard was also incorporated in the Revenue Record through mutations, therefore, Mian Muhammad Siddique had no right to mortgage the property in the year 1987. As such. The respondent bank/decree holder has no concern whatsoever with the suit land.
Learned counsel avers that the suit for recovery of the amount claimed was filed on 20-12-1992 which was decreed on 29-8-1993 while the decree holder filed the execution petition on 23-7-1998 which was badly barred by time. He argues that the appellants moved an objection petition but the learned executing court dismissed the same without considering the merits of the objection petition merely on the ground that the objection petition was barred by time in terms of Article 166 of the Limitation Act, 1908 while dismissing the application for condonation of delay. Learned counsel asserts that the impugned order is a glaring violation of law, therefore, the appeal be allowed, the impugned order be set aside and the case be remanded to the learned executing court to decide it afresh after framing of issues and recording of evidence of the parties.
6. On the contrary, learned counsel for the respondents have oppose this SAO on the grounds that the learned executing court has decided the matter in accordance with law after hearing the parties and there is no illegality or infirmity in the impugned order, therefore, the FAO be dismissed.
7. Mr. Ahmed Awais, Advocate has entered appearance on behalf of applicant in C.M. No,3-C of 2006 under Order I, Rule 10, C.P.C. And has contended that the applicant is a necessary and proper party and no effective order or decree could be passed unless he is impleaded as party, therefore, the C.M. Be allowed and the applicant be impleaded as a party in the case.
8. We have heard the arguments put forth from all corners and have also perused the record to the extent available on file.
9. Perusal of record shows that Haji Muhammad Ashiq and others (appellants) through objection petition dated 7-9-2004 objected to the auction dated 7-5-2003 as well as its confirmation and prayed for restoration of possession of their property measuring 17 kanals, 2 marlas. Perusal of record further highlights that Muhammad Siddique son of Mian Said Muhammad alienated the land in favour of Muhammad Ibrahim son of Noor Din/respondent No,4, Muhammad Asghar son of Mian Allah Ditta/respondent of vide registered deeds No, 20247, dated 11-12-1982 and 20286, dated 13-12-1982.
10. The Bank of Oman predecessor of Crescent Commercial Bank instituted suit for recovery of Rs,1,67,59,820.45 on 20-7-1992 which was decreed on 29-8-1993. The decree holder filed execution petition on 23-7-1998 after elapse of about 5 yeaRs,
11. The important point for disposal of the matter in hand is that at the time of filing of the suit on 20-7-1992, the suit land was not mortgaged with the respondent ,bank by the appellants nor there was any such entry available in the Revenue Record. Before filing of the suit or attachment of the property, the judgment debtor never obtained non-encumbrance certificate from the revenue department because according to the Revenue Record, the suit land was not mortgaged by the appellants, so the learned executing court has committed a glaring mistake while attaching the suit property and thereafter conducting its auction which was confirmed and the owners of the land were dispossessed.
12. Another important point was of limitation which was overlooked by the learned executing court as admittedly, the decree was passed on 29-8-1993 and the period for filing first application for execution petition is prescribed as three years while in the instant case, the execution petition was filed on 23-7-1998 with a delay of about 5 years which was not considered by the learned executing court while deciding the matter.
13. The objection of learned executing court that objectors has not filed the objection petition under Order XXI, Rule 90, C.P.C. And the objection petition was maintainable within 30 days in terms of Article 166 of the Limitation Act, 1908 commencing from the date of sale but the same has been instituted on 7-9-2004 after about 15 months. The controversy about limitation is a factual controversy which was decided without framing of issues and recording of evidence Further, Articles 165 and 166 of Limitation Act, 1908 are distinguishable. Article 165 does not apply to applications made by judgment debtor while under Article 166, any person mentioned in Order XXI, Rules 89 and 90, C.P.C. Or judgment debtor can file objection petition for setting aside the sale within 30 days from the date of sale. It was the duty of the learned executing court to first frame issues and record oral as well as documentary evidence of the parties and then decide the matter as there were factual controversies between the parties including as to whether the suit property was mortgaged or not. Similarly, the learned executing court has ignored Article 181 of Limitation Act which prescribes the period of three years for filing first application for the execution of the decree as governed by section 48, C.P.C.
14. Learned executing court has further erred while proceeding the matter under section 22 of Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997 as the said Act was promulgated on 25-7-1997 whereas the matter between the parties arose prior to the promulgation of the Act ibid and the Act of 1997 had no retrospective effect.
15. As a result of above discussion, we hereby allow this FAO, set aside the impugned order dated 19-12-2005 passed by learned Judge Banking Court No,II, Lahore and remand the case to the learned executing court to decide the matter afresh after framing of issues, recording of evidence and providing adequate opportunity of hearing to the parties. As a consequence, C.M. No,3-C of 2006 under Order I, Rule 10, C.P.C. Also stands disposed of. Since it is an old matter, therefore, the learned executing court is directed to decide the matter expeditiously, preferably within 6 months from the date of communication of this order. Parties are directed to appear before the learned executing court on 20-12-2010. .