Rasaal Hasan Syed, J. This appeal has been filed under section 22 of the Financial Institution (Recovery of Finances) Ordinance, 2001 (the "Ordinance" ) against order dated 17.11.2015 of the learned Judge Banking Court-II, Gujranwala Camp at Sialkot whereby the objection petition of appellant was dismissed.
2. Respondent No.1 instituted a suit for recovery of Rs.8,43,619/- inclusive of mark-up along with liquidated damages against respondent No. 2 Muhammad Iqbal (now deceased) and respondent No.3 which was decreed on 11.5.1994. Land measuring 14 kanals and 16 marlas in khewat Nos.98, 99 and 105, khatooni Nos.506 to 508 situated in Village Godhpur , Tehsil and District Sialkot belonging to respondent No.2, which had been mortgaged with the respondent bank to secure the payment of the finance facility subject-matter of the recovery suit, was put to auction in the proceedings for execution of the decree. In result the mortgaged property was purchased in open auction by respondent Nos. 4 to 8 in whose favour sale certificate dated 14.10.2000 was issued by the Banking Court as acknowledgement of sale of 07 kanals and 08 marlas to respondent No. 4 and respondent No.5, Faqir Sain and Mian Muhammad Sharif; and 07 kanals and 08 marlas in favour of respondent Nos.6 to 8, Muhammad Aslam, Muhammad Asghar and Khalid Javed, all sons of Fateh Muhammad. An application for delivery of possession was moved by the auction purchasers wherein on 06.6.2013 the appellant filed an objection petition under Rule 99 of Order XXI read with section 151, C.P.C. raising the plea that land measuring 09 marlas belonging to respondent No.2 Muhammad Iqbal had been purchased by him vide registered sale deed No.7210, bahi No.1, volume No.994, registered on 04.12.1991 with the Sub-Registrar Sialkot in consideration of Rs.21,500/- and mutation No.1573 dated 15.1.1992 was also sanctioned in his favour and that he was entitled to possess the property and that respondent Nos. 4 to 8, the auction purchasers, were illegally alleging to have bought it as part of the property sold to them in auction in execution of decree dated 11.5.1994 and in respect whereof sale certificate dated 14.10.2000 was also issued in their favour . The objection petition of appellant, after seeking reply and hearing both sides, was dismissed by the Banking Court and a direction to hand over vacant possession of the land to respondent Nos. 4 to 8 within three months was issued vide impugned order dated 17.1 1.2015.
3. Learned counsel for the appellant submits that the appellant was a purchaser from respondent No.2 through registered sale deed dated 04.12.1991 for valuable consideration and that mutatio n No.1573 dated 15.1.1992 was also attested in his favour; that suit titled "Faqir Sain and another v. Amjad Ali" filed against the appellant by respondent Nos. 4 and 5 i.e. Faqir Sain and (late) Mian Muhammad Sharif for possession of land after demolition and removal of superstructure, was dismissed on 23.7.2010; that appellant' s stance was also accepted in the suit titled "Amjad Ali v. Province of the Punjab, etc." instituted on 07.2.2012 for cancellation of mutation No. 4572 dated 16.2.2004 and restoration of his mutation No.1573 dated 15.1.1992 which was decreed ex parte on 19.3.2014 and in consequence thereof mutation No.4572 dated 16.2.2004 was cancelled whereby appellant' s status was affirmed in the Revenue Record by restoration of mutation in his favour and that in these circumstances his objection petition against application of respondent Nos. 4 to 8 for possession before the Banking Court was unjustifiably dismissed and that the appe llant was illegally ordered to hand over possession. Learned counsel for the respondents, on the other hand, defended the order as being justified in the circumstances noted in impugned order and maintained that the objection petition was untenable and that the Banking Court rightly dismissed the same.
4. Points raised from both sides have been carefully considered and record of the case duly scrutinized. It is evident therefrom that the respondent No. 1, the bank, instituted a suit for recovery against respondent Nos. 2 and 3, Muhammad Iqbal (since deceased) son of Muhammad Hussain and Muhammad Iqbal son of Rehmat Ali claiming that at the request of said respondents, the respondent bank allowed certain finance facilities; that to secure the amount of finance amongst other documents an agreement to create mortgage was executed in favour of respondent bank; that the mortgage charge was registered vide Certificate of Charge dated 30.4.1990 in terms whereof land measuring 14 kanals 16 marlas in khewat Nos.98, 99, 105, khatooni Nos. 506 to 508 in Village Godhpur , Tehsil and District Sialkot was mortgage in favour of respondent bank; that due to default committed by the respondent Nos. 1 and 2, suit for recovery was instituted against them which was decreed on 11.5.1994; that in execution proceedings the property was put to auction and was ultimately purchased by respondent Nos. 4 to 8 being the highest bidders; that sale through auction held on 25.7.2000 was confirmed in their favour and, thereafter , sale certificate dated 14.10.2000 was issued by the learned Judge Banking Court, Gujranwala in their favour and that in pursuance thereto the land was duly mutated in Revenue Record in favour of the auction purchasers.
5. In the application seeking possession of the purchased property through auction before the learned Judge Banking Court the appellant' s objections were to the effect that he had purchased the property from respondent No.2 the late Muhammad Iqbal vide sale deed dated 04.12.1991 and that mutation No. 1573 dated 15.1.1992 was attested in appellant' s favour and that being a bona fide purchaser for consideration he was duly protected and that the auction of property was legally untenable.
6. It is evident from the record and also not denied that the property measuring 14 kanals and 16 marlas in khewat Nos. 98, 99 and 105, khatooni Nos. 506 to 508, situated at Village Godhpur , Tehsil and District Sialkot belonging to the judgment debtor was under a charge of the respondent bank and that to secure the recovery of the amount of finance, agreement to create mortgage was executed, Certificate of Charge dated 30.4.1990 in favour of the respondent bank in respect to the mortgage of the property was also issued and the factum of mortgage was also duly entered in the Revenue Record. It is obvious that the mortgage of the prope rty was prior in time which fact was also evident from the Revenue Record and that the appellant despite the existence of mortgage charge claimed to have purchased a piece of land measuring 09 marlas on a subsequent date i.e. 04.12.1991. It is not claimed that any permission to alienate the property was obtained from the bank or the bank was ever put to notice about the intended purchase by the appellant or that any attempt was made to seek confirmation from the bank before making any transaction of sale. In these circumstances, it could not be claimed that the purchase by appellants was bona fide.
7. Main reliance of the appellant in this context is on a judgment of the Civil Court in suit titled "Faqir Sain v.
Amjad Ali, etc." dated 23.2.2010. In the first instance the property having been sold in auction in execution of a decree passed by the Banking Court, all questions pertaining title, rights and interest therein could only be determined by the Executing Court and no separate suit was maintainable for determination of these questions.
Rule 62 of Order XXI, C.P.C. mandates that all questions related to the right, title or interest of the claimant or objector in the attached property shall be adjudicated upon and determined by the court and no separate suit shall lie to establish such title, right or interest. Same is the rule in respect of claim of occupation which is exclusively triable by the Executing Court and the suit is barred by Rule 62 ibid. As such civil suit of the appellant in view of the specific bar was not maintainable. Reference can be made to the case of "Chaudhry Abdul Majid v. Sadaqat Saeed Malik and 3 others" (2002 CLD 463) and "Habiba Kassam and others v. Habib Bank Ltd." (1989 CLC 1433).
8. Even if for the sake of argument the judgment in the said civil suit is taken into consideration, it does not help the appellant. Copy of the judgment in the suit titled "Faqir Sain etc. v. Amjad Ali" is placed in appeal file at page 39.
Returning his findings on issue No.1 as to the existence of cause of action and locus standi, the conclusion drawn by the learned Civil Judge was as follows: "...From the above referred rule it is clear that the auction purchaser could apply under this rule to the court with whom the execution proceedings are pending and by whose order the auction took place. Therefore, the plaintif f has a remedy to file application before the Banking Court to secure possession of the land in dispute and has no locus standi to file separate suit...".
Similarly , the findings of the learned Civil Judge on issue No. 6 were as under: "6 ... Ex. P 6 is original sale certificate issued in favour of the plaintif fs alongwith Muhammad Aslam, Muhammad Asghar and Khalid Javaid, there is no rebuttal of this document. Even otherwise, this is a judicial record and presumption of truth is always attached with such documents. PW1, PW 2 and PW3 have unanimously stated that the plaintif fs purchased the suit land through auction conducted by the order of the learned Judge Banking Court, Gujranwala and mutation in favour of the plaintif fs was also sanctioned upon the direction of the court therefore, the issue is accordingly decided in favour of the plaintif fs".
It is noteworthy that the plaintif fs in the said suit were the two auction purchaser s i.e. respondent Nos. 4 and 5 while the defendant in the suit was the appellant. Copy of the plaint, written statement filed therein and the judgment of the Civil Court referred supra are at pages 31 to 45 of the appeal file. Curiously , the appellant tried to rely upon this judgment to assert that his title was established. As observed hereinabove the suit itself was not maintainable, the Civil Court could not possibly take cognizance to determine the question of title, interest or right in the property sold during execution of a decree by the Banking Court as the suit was barred by Rules 62 and 103 of Order XXI, C.P.C. and, being so, the appellant could not possibly bank upon the plea of bona fide purchaser on the strength of the observation if any made in the said judgment particularly when the learned Civil Judge had observed that the remedy of auction purchaser was to apply to the Executing Court/Banking Court for seeking possession and not to file the civil suit and that they were lawful purchasers of the property through auction and also that sale certificate was issued in their favour which carried presumption of truth.
9. Learned counsel for the appellant also urged the point that in a suit for declaration titled "Amjad Ali v. Province of Punjab, etc." his status was determined in the Revenue Record and his mutation was restore d by cancelling the mutation attested in favour of the auction purchaser . Perusal of the plaint and also judgment in the said suit, which are available at page 49 and 60 of the appeal, clearly shows that neither the respondent Nos. 4 to 8 were impleaded as party nor the judgment debtor who previously owned the property and whose property was sold in auction and from whom the appellant claimed purchase of 09 marlas was impleaded as defendant nor the decree holder bank was arrayed as party . The defendants arrayed as party were only the Province of the Punjab through Collector Sialkot, DOR/Addl. District Collector , Sialkot and Tehsildar/AC-II, Sialkot. Without impleading the decree holder bank, the judgment debtors or the auction purchasers an ex parte order was obtained from the court on 19.3.2014 for the cancellation of mutation.
10. It is a settled rule that the judgment and decree bind the parties to the proceedings while a person who is not a party therein will not be bound by such decree or judgment nor it can be used detrimental to their rights and interest in the property . Reference can be made to "Mst. Amina Begum v. Chairman Kara chi Development Authority and 5 others" (1993 CLC 1307 ). The previous owners of the property i.e. respondent Nos. 2 and 3 as also the auction purchasers i.e. respondent Nos. 4 to 8 were necessary parties without whom no order could be passed against the interest of the purchasers nor the ex parte judgment could be binding upon the decree holder or auction purchasers. Being so, the objection raised on the basis of such ex parte judgment was legally untenable as against the judgment debtors, decree holder as also the auction purchasers.
11. Another question raised by the learned counsel was that the property purchased by the appellant was different from the property subject matter of mortgage and as such his sale certificate in respect of the mortgaged property could not be enforced against the property purchased by him vide sale deed No. 7210, bahi No.1, volume 994, registered on 04.12.1991 with the Sub-Registrar , Sialkot. It was argued that the identity of the property according to appellant was distinct from the property mortgaged by respondent No.2 Muham mad Iqbal son of Muhammad Hussain to secure loan extended to him and Muhammad Iqbal son of Rehmat Ali by the decree holder bank on 24.4.1990.
12. It appears from the order-sheet of the appeal that this point was raised by the appellant at one stage when he offered to produce the original sale deed showing purchase of distinct and different property on which a direction was given to place on record the sale deed for satisfaction of this Court. No such sale deed was produced in original.
13. Be that as it may, the case of the decree holder bank was that the land measuring 14 kanals and 16 marlas in khewat Nos. 98, 99 and 105, khatooni Nos. 506 to 508, situated in Village Godhpur , Tehsil and District Sialkot was mortgaged in favour of the bank which description was also given in the relevant documents of the bank and also in the plaint. This description was also incorporated in the notice published for the auction of property , the report of the court auctioneer as well as the sale certificate issued by the Banking Court on 14.10.2000. This being so, the Banking Court in execution of the sale decree and for delivery of the possession subject matter of auction, directed that the possession of the property be handed over to the auction purchaser .
14. This of course will mean that the property which was subject matter of auction as reflected in the sale certificate will only be delivered to the auction purchaser . If the appellant is confident that the property which he purchased through registered sale deed dated 04.12.1991 measuring 09 marlas falls in different khewat and khasra numbers and that it has a different location then there was hardly any occasion for him to file appeal against the order of delivery of possession which was in respect of the property as reflected in the sale certificate. At the time of delivery of possession, the bailiff of the court will have to be accompanied by a Revenue Officer viz. the Tehsildar/Patwari of the Halqa to identify the property mentioned in the sale certificate as per Revenue Record which was auctioned in favour of the auction purchasers and the possession will be delivered to the auction purchasers only in respect of the property which is subject matter of the plaint, decree, the agreement of mortgage, the auction report as also the sale certificate.
15. If the appellant has any apprehension that the auction purchaser in the garb of impugned order will usurp or take possession of the property different from the one subject matter of sale certificate, he can move a specific application requesting the Banking Court for appointment of Revenue Officer to accompany the bailiff at the time of delivery of possession to identify the exact location of the property measuring 14 kanals and 16 marlas in khewat Nos. 98, 99 and 105, khatooni Nos. 506 to 508, situated in Village Godhpur , Tehsil and District Sialkot and to ensure that the order of delivery of poss ession is implemented in letter and spirit in qua the property which is subject matter of purchase in auction and that no distinct property or the property of any other person is disturbed and any such application, if filed, will be decided in accordance with law. Even otherwise as a matter of rule, the order of possession being in relation to the property which has been mortgaged with reference to specific khewat and khatooni numbers, the Banking Court shall take care to order for the appointment of the Revenue Officer, Tehsldar/Patwari of Halqa to accompany the bailiff for identifying the property subject matter of the sale certificate for ensuring that delivery of only the said property is made at site.
16. In the given circumstances and subject to the observations supra, the order for delivery of possession of the auctioned property impugned herein, calls for no interference. The appeal is, accordingly , dismissed .