Brief facts, out of which present appeal arises are that the learned Bering Court had already passed a decree in favour of respondent No-1, who had already filed an execution petition against the judgment-debtor before the Banking Court, in which the Banking Court had already passed an order qua the sale of the property in question. The appellant filed C.M. No.403-B/00 on the ground that the property in question had already been purchased by the appellant through an agreement to sell dated 8-11-1997, which was dismissed by the learned Banking Court vide order dated 15-1- 2001.
2. The learned counsel of the appellant submits that appellant had already paid all the consideration to the vendor amounting to Rs.24 million and possession of the property in question had been obtained by the appellant; principle of section 53-A of the Transfer of Property Act is fully attracted in the present case. But, the learned Banking Court had not considered this aspect of the case. In support of his contention he has relied upon the judgments reported as Naib Subedar Taj Muhammad v. Yar Muhammad Khan (1992 SCM R-1265) and Fazal v. Mehr Din (1997 SCM R 837).
3. We have considered the arguments of the learned counsel of the appellant. As per provisions of section 54 of Transfer of Property Act, an agreement to sell does not create any title in the immovable property, therefore, on the basis of alleged agreement, the appellant, cannot resist the execution of the decree or challenge the auction made in favour of the auction purchaser by the Court. As regards, the submission of Property Act are attracted to the instant case; we are not satisfied that the possession had been delivered to the appellant under the said agreement. In this, behalf it may be mentioned that, as per the agreement an amount-of Rs.5,00,000 to the vendor on 10-3-1994; Rs.20,00,000 on 20-8-1995; Rs.10,00,000 on 20-8-1995; Rs.22,00,000 on 22-11-1995 through a receipt; Rs.1,50,000 through a. Pay order on 23-11-1995 and the balanee amount of Rs.53,00,000 were paid to occupant of the property, from whom the possession was obtained by the appellant.
We are afraid that any agreement to sell between the appellant and the vendor of the property pertaining to the year 1994 has not been placed on record. It is unbelievable that a limited company i.e. The appellant and the vendor being a limited company entered into an oral agreement and such a clossal amount was paid without any agreement to sell between them envisaging the bargain. It may also be important to mention here that no document has been placed on record to show if the alleged payments; specified in the agreement to sell were ever paid by the appellant company to the vendor company.
4. In the light of, above, we are not persuaded that the alleged possession of the appellant, by virtue of the said document, is the possession' within the purview of section 53-A of the Transfer of Property Act. Besides, there is no independent proof on the record that appellant had entered upon the possession of the said property under any agreement to sell. It is not established if the appellant, after having entered upon the possession is making the property tax etc. Or the property has been transferred in its favour in the concerned department of the Government. It seems that, in order to frustrate the decree, passed in favour of respondent No. 1, this is an abortive attempt to the part of the appellant; alleging the agreement and claiming protection of section 53-A of the Transfer of Property Act. It is fundamental principle of law that where the transaction is colourable and with an object to defeat the right of the creditor; that is not considered to be valid in law.
Judgments relied upon by the learned counsel of the appellant are distinguishable on their own facts; thus, we are not persuaded to interfere in the impugned order, which is valid and well- reasoned order. This appeal, thus, has no force and is hereby dismissed.