RANA BHAGWAN DAS, J.---This petition under Article 199 of the Constitution calls into question the vires of order, dated 22-3-1994 Passed by the learned Chairman Banking Tribunal No.II for Karachi and Larkana Divisions in Execution Application No. 56 of 1993 arising out of decree passed in suit No. 136 of 1992.
2. National Bank of Pakistan, filed a suit for recovery against respondents 3, 4, 5 and 6 which was decreed and in execution proceedings Property No. D-104, Block-5, Federal 'B' Area, Karachi, was ordered to be attached, and a notice of auction was published in Press on 19-2-1994 for auction to be held on 26-3-1994. Such property was ordered to be sold on the strength of a Deed of Mortgage executed in favour of the respondent Bank on or about 21-8-1998 by respondent, Shaikh Mansoor Ahmed, through his attorney Abdul Latif before the Sub-Registrar Division VII, Karachi.
3. Petitioners on acquiring. Knowledge of contemplated sale by auction of the property moved an application under Order XXI, rule 58, C.P.C. Before the Banking Tribunal claiming title to property on the strength of a sale deed executed by respondent Shaikh Mansoor Ahmed in their favour duly registered on 14-2-1987 followed by mutation in the record-of-rights of KDA after publication of public notice. Not satisfied with the points urged in the aforesaid ,application,, learned Chairman, Banking Tribunal by the impugned order dismissed the same for the reasons that the petitioners did not have the original title deed and that they could not be deemed to be bona fide purchaser.
Learned Presiding Officer declined to hold enquiry into the claim put forward by the petitioners leading to the filing of 1st Appeal No. 23 of 1994 under the provisions of Banking Companies (Recovery o f Loans) Ordinance, 1979, wrongly titled as Appeal under Order XLIII, rule 1, C.P.C. During the pendency of such appeal petitioners moved an application for conservation of the appeal in a Constitutional petition which was allowed vide Order, dated 17-5-1994 and petition admitted to regular hearing.
4. For proper understanding and appreciation of the question for consideration in this petition, it may be pertinent to reproduce the provisions of Order XXI, rule 58, C.P.C. Which reads as under:-- "58. Investigation of claims to and objections to attachment of attached property.---(1) Where any claim is preferred to, or any objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector; and in all other respects, as if he was a party to the suit: Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within one year of the date of the first attachment of the said property in the execution of the said decree, whatever is earlier, unless 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.
Postponement of sale.---(2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone in pending the investigation of the claim or objection."
5. At the hearing, the learned counsel for the petitioners contended that the execution of mortgage deed in favour of respondent Bank through a so---called attorney of the judgment-debtor was fraudulent, collusive and unwarranted as the property no longer belonged to the judgment-debtor who had already sold out the same in favour of the petitioners for valuable consideration. It was urged that the petitioners purchased the property after obtaining search certificate from the Registrar as well as after publication of a public notice without any mala fide intention and for valuable consideration. Immediately after the purchase of the property physical possession of the property in question was also handed over to the petitioners who continue to enjoy the same. On the other hand, it is urged that the respondent Bank also agreed to advance finance in favour of respondent No. 3 company after being satisfied on perusal of the original sale-deed in favour of Shaikh Mansoor Ahmed, permission to mortgage granted by KDA and a search certificate and without the knowledge of the petitioner's title, if any. Mr. Abdul Saeed Khan Ghori further urged that the documents relied upon by the petitioners are forged on the face of it, therefore, the learned Chairman acted legally is dismissing the objection filed before him.
7. On a plain reading of the provisions of law, quoted hereinabove, we are of the view that it was incumbent and imperative on the part of the Banking Tribunal to hold an inquiry into the claim advanced by the petitioner with regard to their title to the property on the strength of valuable documents and not to reject the same summarily. The provision appears to be mandatory in nature which enjoins upon the executing Court to direct investigation of claim and objections unless the claim or objection has been designedly or unnecessarily delayed or was not made within a reasonable time or within one year of the date of first attachment of the property in the execution of the decree. Obviously this was not a case of undue delay in the making of a claim nor was it made unnecessarily or after unreasonable delay involving more than one year from the date of attachment. Apparently the petitioners moved the executing Court immediately on publication of notice in press and there is no material to indicate on record that they were notified of the fact of attachment earlier so as to reject their claim summarily and without holding any inquiry into such claim. Impugned order, therefore, suffers from an inherent defect and infirmity which cannot be sustained at law. Since the order was passed under a mistaken view of law, we declare it to have been passed without lawful authority and recall the same. Execution application shall be deemed to be pending before the Banking Court having jurisdiction in the matter and the claim of the petitioners shall be investigated strictly according to law. In the peculiar circumstances of the case while allowing the petition with the above observations, we leave the parties to bear their own costs.