' AMIN-UD-DIN KHAN, J.---Through this appeal the appellant/decree holder Bank has challenged the order dated 24-2-2010 passed by the learned Executing Court whereby the objection petition filed by respondent No,1 namely Mst. Samar Abid under section 19 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was accepted and the property mentioned therein has been ordered to be released and deleted from Fard-Taleeqa.
2. The facts of the case are that property in dispute being part of property bearing No,102-C New Muslim Town Lahore was got mortgaged with the appellant/decree holder Bank through memo of deposit of title deed as an equitable mortgage deed dated 12-10-1993 by respondent No, 4 on the basis of a registered sale deed No,8786 dated 27-5-1989 in her favour by Pasban Co-operative Housing Society. The deed was registered on 30-5-1989 with Sub-registrar Lahore Cantt.
Subsequently on default suit was filed by the Bank against respondent No,4 and others, which was decreed on 8-2-2002 for an amount Rs,3,91,77,935/98. The case of appellant is that fraud has been committed by respondent No,1 and all the proceedings through which respondent No,14 claims to have purchased the property is based upon fraud and mala fide, without impleading the appellant as party in the suit filed by the original owner of the property i,e, Mst. Syeda Mehmooda Begum and a consent decree in a suit for declaration was procured, therefore, the alleged decree granted by the civil court on the basis of which respondent No,1 claims right in the property is not only fraudulent but if that decree be considered as a valid decree, even then that does not create any rights in favour of respondent No,1 against the rights of appellant, as appellant was not made party in all those proceedings despite the fact that the property was mortgaged with the appellant.
During the execution proceedings respondent No,1 filed an objection petition which is subject matter of this appeal. The case of respondent No,1/objector is that through sale deed respondent No,1 purchased the property from Mst. Syeda Mehmooda Begum after she procured a decree for declaration in her favour, therefore, the claim of respondent No,4 that she purchased the property in dispute from Pasban Cooperative Housing Society with whom allegedly the property was transferred by respondents No,7 and 8 after receiving the property from the original owner Mst.
Syeda Mehmooda Begum by way of inheritance mutation No,6556 attested on 21-5-1985 on the ground that Mst. Syeda Mehmooda Begum has passed away, remains no more in the field.
3. Learned counsel for respondent No,4 supports the version of appellant and states that respondent No,4 has mortgaged the property with the appellant and she was the owner of property and when through fraud a decree from civil court was procured against her, she filed application under section 12(2) of the C.P.C. Which is pending before the civil court. Learned counsel states that respondent No,4 admits that she has mortgaged the property with the Bank and further that no reply of objection petition was sought from respondent No,4 and she was never heard before passing the order impugned in this appeal and that respondents Nos.7 and 8 were not made party in the objection petition nor they were heard, therefore, the order passed by the Executing court is bad in law.
4. We have heard the learned counsel for the parties at full length and also gone through the record minutely appended with this appeal with their able assistance.
5. We have noticed that some facts are admitted one that Mst. Syeda Mehmooda Begum was the original owner of property in dispute. The respondents Nos.7 and 8 were her legal heirs. Her mutation of inheritance No,6556 was sanctioned on 21-5-1985. They were recorded as owner of property No,102/C New Muslim Town, Lahore. They transferred the property to Pasban Co-operative Housing Society. Subsequently some portion of property was transferred in favour of respondent No,4 Mst. Halima Shuja through registered sale deed No,8786 dated 30-5-1989 registered with Sub- Registrar Lahore Cantt. And respondent No,4 mortgaged the property with the appellant/Bank.
6. During the pendency of execution petition, the order dated 12-1-2005 shows, that an objection petition filed by Mst. Syeda Mehmooda Begum was pending when the present respondent No,1 Mst.
Samar Abid filed another objection petition on the ground that she has purchased the alleged mortgaged .Property from Mst. Syeda Mehmooda Begum and the original owner passed away on 5-12-2003 and Mst. Samar Abid/objector purchased the property from the owner after a decree was passed in favour of Mst. Syeda Mehmooda Begum that she was alive and mutation of inheritance was wrongly sanctioned. A suit for declaration was filed on 28-9-2002 allegedly by Mst.
Syeda Mehtriooda Begum stating that she is alive. In the suit only Mst. Tanveer Bokhari, Zohra Fakhar Bokhari and Mst. Halima Shuja were made party as defendants. The appellant/Bank and Pasban Co-operative Housing Society were not impleaded as party in the suit. The record shows that separate consenting written statements were filed by Mst. Tanveer Bokhari, Zohra Fakhar Bokhari and Mst. Halima Shuja. Though the counsel of all the three defendants in the suit was same, whose name is Noor Muhammad Advocate. A consent decree was passed on the basis of consenting written statements as well as making statements by Mst. Tanveer Bokhari and Zohra Bokhari appearing before the court on 17-6-2003 and 18-6-2003. No statement of Mst. Halima Shuja was recorded and the suit was decreed through a short order dated 30-6-2003 having only four lines on the basis of alleged conceding written statements and statements of defendants. It is on the record that through the suit basically the inheritance mutation was challenged and no subsequent sale deeds, transfers or mortgage deeds were pecifically challenged in the suit. Neither the appellant/Bank nor Pasban Co-operative Housing Society were made party to the suit. Though the learned counsel for the appellant has argued the matter with regard to fraudulent passing of decree in favour of said Mst. Syeda Mehmooda Begum which has been challenged by respondent No,4 whose application under section 12(2) of the C.P.C. Is pending and appellant's writ petition is also pending wherein subject matter of the lis is application under section 12(2) of C.P.C. Filed by the appellant/Bank, therefore, we refrain ourselves from commenting upon the validity of passing of judgment and decree, as the same is subject matter of applications filed by the appellant as well as respondent No,4, which are pending adjudication. We presume that a decree has been passed in favour of Mst. Syeda Mehmooda Begum the original owner on 8-2-2002 with the consent of parties, where admittedly the mortgage in favour of appellant was not challenged and further the transfer in favour of Pasban Cooperative Housing Society was not challenged neither Pasban Co-operative Housing Society was made party nor the appellant/Bank, in that eventuality, whether that decree is binding upon the appellant and Pasban Cooperative Housing Society. The question is very simple in the light of Section 43 of the Specific Relief Act, 1877, which is reproduced as under: "43. Effect of declaration: A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees."
' In case in hand, when Mst. Tanveer Bokhari and Zohra Fakhar Bokhari in whose favour mutation of inheritance of Mst. Syeda Mehmooda Begum was sanctioned, transferred the property through registered sale deeds etc in favour of Pasban Cooperative Housing Society, after transfer of property by said ladies, in our view, consent statement was having no value in the eye of law, when Pasban Co-operative Housing Society has not been arrayed as defendant as well as the appellant in the suit and only on the basis of consent statement made by said two ladies the suit has been decreed. Mst. Tanveer Bokhari and Zohra Fakhar Bokhari never denied from transferring the property in favour of Pasban Co-operative Housing Society, therefore, after transferring the property they were having no right to make consenting statements in the suit allegedly filed by Mst.
Syeda Mehmooda Begum. Another question is very important that a simple declaration was sought knowingly that property has been transferred thrice through registered sale deeds etc and has been mortgaged with the appellant/Bank without challenging those transfers, the decree got executed through the court whereby the orders were procured from the court for cancellation of sale deeds etc are also showing fraud on the part of respondent No,1 Mst. Samar Abid. Another factor has been shown that Colonel Saif-ud-Din Qureshi is father and attorney of Mst. Samar Abid, the objector and the alleged death certificate produced in the objection proceedings shows that said Colonel Saif-ud-Din Qureshi received the body of Mst. Syeda Mehmooda Begum from Hospital. This document has been produced by the objector herself to show the date of death which speaks against her also.
7. In view of the above discussion, we are of the considered view that the order passed by the learned Executing court is absolutely against the law, as the alleged consent decree cannot be used against the rights of appellant created through valid execution of the document and when after creation of rights in favour of appellant the transfer of property was challenged without impleading Pasban Co-operative Housing Society as well as the appellant, that the declaratory consent decree is not binding upon the appellant therefore cannot be used against the rights of appellant. In our considered view a declaratory decree passed under section 42 of the Specific Relief Act, 1877 declares a pre-existing right and does not create or confer a new right, when creation of rights of appellant in the suit property was never denied, procuring a decree without impleading the appellant as defendant in the suit and without proving a right against the appellant/Bank for which declaration was sought that decree is not binding upon the appellant, therefore, cannot injure the rights of appellant in that property. The claim of objector/respondent No,1 is wholly based upon the above mentioned ex parte declaratory decree.
8. In this view of the matter, we accept this appeal and set aside the impugned order dated 24-2- 2010. Resultantly, the objection petition filed by respondent No,1 Mst. Samar Abid shall stand dismissed.