1. Brief facts of the instant civil revision are that the respondent No.1, National Bank of Pakistan filed a suit for recovery of the amount alongwith the interest against respondent No.2 Aziz-ud-Din relating Property bearing No II-116-R-15 situated at Chah Miran Road near Government Islamia High School.
2. Misri Shah, Lahore. The suit was contested by the respondent and it was decreed to the amount of Rs.1,71,037. The execution petition was filed by the respondent No.1 before the executing Court. The plot relating to Khasra No.453/253 measuring one Kanal was put to auction. The present petitioners filed an objection petition under Order XXI, Rule 58, C.P.C. On the grounds that they are the vendees for a valuable consideration, that they have got the property through registered sale-deed, that they are bona fide purchasers of the said property, their possession is protected under section 41 of the Transfer of Property Act, 1882 and that they were never a party to the suit or proceeding as they were not aware of the pendency of the suit filed by the respondents. This application was contested by the respondent Bank. The learned trial Court on 29-5-1984 gave a direction to the petitioner to deposit Rs.1,73,000 in the form of bank guarantee, otherwise the auction proceedings would continue and the plot was put to auction during the auction proceedings. Being aggrieved of the said order the petitioner filed the instant civil revision.
2. According to the arguments of the learned counsel for the petitioners any objection petition filed under Order XXI, Rule 58, C.P.C. Gives a jurisdiction to the executing Court to investigate the claim of the objectors in such like manner if he was a party to the suit and unless the claim of the objectors is investigated the learned trial Court being an executing Court could not summarily reject the application or pass an order which tentamounts to rejection of the application which goes against the analogy of Order XXI, Rule 58, C.P.C. Which lays down the procedure of investigation carried out in the form of evidence. Therefore, the learned Judge has wrongly exercised the jurisdiction because under Order XXI, Rule 23-A, C.P.C. Only the word is the judgment-debtor and not the objector, when the decree relates to payment of money the judgment-debtor should furnish security for the due purposes. .
3. Learned counsel for the respondents opposed the contention of the learned counsel for the petitioner. He has attracted the attention of this Court to an order recorded on 29-5-1984 by the learned trial Court where it is written:- (1)Whether the objection petition is mala fide and not maintainable? O. P. D.
3. (2)Whether the objectors are bona fide purchasers of the property in dispute for valuable consideration? If so to what effect? O.P.P.
4. (3)Relief.
5. To come up for the evidence of the objectors/petitioners on 9-7-1984.
6. (Sd.) Civil Judge 29-5-1984."
7. Learned counsel for the respondent further submitted that the property was mortgaged in the year 1960 with the respondent by one Aziz-ud-Din. His son filed a suit against his father that the property belongs to him. Now since the property was mortgaged in the year 1960 and the petitioners/objectors claim to have the registered sale-deed after the decree was passed by the learned trial Court against Aziz-ud-Din etc., they have rightly stepped into the shoes of the vendor.
8. This fact cannot be denied that they purchased the property under the charge of mortgage which was being auctioned by the orders of the learned executing Court.
9. 4.I have heard the arguments of the learned counsel for the parties and have perused the record and also the provisions of Order XXI, Rule 58, C.P.C.
5. Order XXI, Rule 58, C.P.C. Is very clear. The provisions of the same relates to investigation of claims to- and objections to attachment of, attached property, when the claimant or objector:- (a)proves title acquired in good faith and for consideration subsequent to the date of the first attachment; (b)proves that his predecessors-in-interest, whether their interest existed at the time of such attachment or was acquired thereafter, fraudulently omitted to make a claim or objection; and (c)impleads all such predecessors-in-interest, as parties.
10. (2)Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.
11. Such claim or objection whenever is made by a party to the suit it is always determined in the proceedings under section 4" of the Code of Civil Procedure and the provision of section 141, C.P.C.
12. Will apply to such proceedings. Rule 59,.C.P.C. Relates to the evidence to be adduced by the A claimant. The scope of inquiry has been widened in order to ascertain whether the claimant or objector had some interest or was possessed of the attached property, the Court can receive evidence.
6. The present case is slightly different. The petitioners claim to have purchased this property after the decree was passed by the learned trial Court. The property was mortgaged in the year 1960 and the petitioners/objectors have rightly stepped into the shoes of the original owner and purchased the property under the charge of mortgage and could not wriggle out even afterwards.
13. Moreover, they volunteered to deposit the bank guarantee if the auction proceedings were stayed.
14. As the property was attached for auction, therefore, the petitioners are estopped by their own conduct to challenge the impugned order.
15. 7.In view of what has been stated above the civil revision is dismissed and the petitioners are directed to deposit the bank guarantee in the sum of Rs.1,70,000 before 9-3-1999, failing which the property attached for auction shall be auctioned. (The impugned order is modified to this extent).
16. The learned Banking Court No. 1, Lahore, however, is directed to decide the objection petition of the petitioners within four months of passing of this judgment.