' The facts leading to the filing of the present appeal are that the respondent-Bank filed a recovery suit against various defendants, including Mrs. Shahida Kazmi, who is respondent No,6. A decree in favour of the respondent-Bank was passed against the defendants, including Mrs. Shahida Kazmi.
2. It appears that Mst. Shahida Kazmi, respondent No,6, has been sued in her capacity as mortgagor in respect of Plot No,22, Street No,40, F-7/1, Islamabad. The present appellant, claims to be the transferee of the aforesaid plot, from Muhammad Nawaz, respondent No,9 who allegedly was the transferee from respondent No,6 Mrs. Shahida Kazmi.
3. It is the contention of the appellant that her objection-petition should have been allowed, firstly on the scope that no valid mortgage itself was created by Mrs. Shahida Kazmi, respondent No,6 in favour of respondent-Bank, and also on the ground that she was a bona fide purchaser for valuable consideration without notice of any encumbrances on the aforesaid property purchased by her through transfer by C.D.A.
4. Evidence was led on the objection petition, both oral as well a documentary. The only documents which were deposited with the Bank on the basis of which the said Bank claimed to be mortgagee of the above referred property, are Exh.O/G and Exh.O/S. Exh. 0/G is an application for transfer of allotment of the disputed plot, purportedly signed by Aurangzeb Malik, the original allottee of the aforesaid property from whom Mrs. Shahida Kazmi had acquired the same. The said document Exh.O/G has been held to be a fake document. It has been so held on the basis of the testimony of Iftikhar Hussain, Deputy Director (EM-I) C.D.A., Islamabad, who appeared as objector's witness No,2.
According to his testimony, the said document Exh.O/B is not genuine as it is not part of the record of the C.D.A. The other documents, i,e, Exh.O/S appears to be a copy of the letter purportedly addressed to Aurangzeb Malik by one Qinait All of C.D.A. With a copy of the same to Mrs. Shahida Kazmi. The said document does not bear the signatures of any functionary of the C.D.A. Although the endorsement of a copy to Mrs. Shahida Kazmi appears to have been signed.
In the above circumstances, we are clear that the deposit of the two documents Exhs.O/G and 0/S did not result in the creation of a mortgage in favour of the respondent-Bank. In this view of the matter, we are of the view that the objection petition filed by the appellant ought to have been allowed by the leaned Judge Banking Court.
The learned counsel for the respondent-Bank has contended that the executing Court cannot go behind the decree wherein it had been held that Mrs. Shahida Kazmi was a mortgagor of the property. We are unable to agree with this contention' of the learned counsel because whatever may have been held by the Banking Court, whether as trial Court or as Executing Court, cannot affect the rights of Khalida Adeeb Khanum, the present appellant, who is a bona fide purchaser of the disputed plot for valuable consideration without notice of any encumbrance on the same.
Learned counsel for the decree-holder Bank stated frankly that there was nothing on record to show that the appellant was not a bona fide purchaser of the plot in question. This circumstance coupled with our finding that no mortgage was in fact, created in favour of the Bank, is sufficient to allow this appeal. The judgment in the case titled Habib Bank Limited v. Messrs Ajmal Corporation and others (2000 CLC 1425) cited by learned counsel for the Bank, in the circumstances, is of no avail to the Bank.
In the circumstances, we set aside the impugned order, dated 18-4-2001 and allow the objection petition filed by the appellant-objector.