' This is an appeal under section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 against the order dated 19.11.2016 passed by the Banking Court-II, Lahore.
2. It is not denied by the learned counsel for the appellants that the appellants were neither a party in the suit nor a decree was passed against them. It is also not in dispute that the appellants were neither borrowers nor customers of the respondent-Bank. An application under section 12(2) of the Code of Civil Procedure was filed for setting aside the judgment and decree dated 20.02.2012.
However, in our opinion, the said application which was dismissed by the impugned order, was not strictly maintainable as the appellants have not referred to any fraud or illegality to have crept in the entire transaction. The only contention raised by the learned counsel for the appellant is that the property mortgaged could not be auctioned, in that, it is a joint Khata and unless the partition takes place, the property cannot be auctioned. The impugned order properly deals with the said contention raised by the appellants and we do not find any infirmity to have crept in the said finding rendered by the Banking Court, Lahore. In the impugned order, a reference has also been made to an objection raised by the appellants to the suit in E.F.A. No,880 of 2015 before this Court and in which precisely the same issues were raised. The said appeal was disposed of by this Court by holding that the property can, in fact, be put to auction till formal partition takes place of the joint Khata. It is also observed in that order that the private partition has also come on record by which the respective owners of the mortgaged properties were put in exclusive possession of their properties entitled to hold till partition. That principle becomes applicable in respect of the appellants as well who admittedly have filed proceedings for partition of joint Khata. There is no cavil with the proposition that a person who purchases a property in auction merely steps into the shoes of the one of the owners in the joint Khata whose share of the, property is sold thereby. We do not find any substance in the appeal, which is dismissed.