' The brief facts out of which the present appeal arises are that the appellant filed objection petition before the Executing Court. The Executing Court dismissed the objection petition for the appellant vide impugned order, dated 30-3-2001. The appellant being aggrieved filed this appeal.
2. Learned counsel of the appellant submits that property of the appellant was' not mortgaged with the respondent-Bank by the loanee of the Bank. Therefore Banking Court was erred in law to dismiss the objection petition of the appellant without applying his mind. He heavily relied on para.4 and ground-c of appeal that the impugned order of the Executing Court is not sustainable in the eyes of law. He further submits that property of the appellant is allotted a different number in Excise and Taxation Department as is evident from the contents of para.4 and ground-c of the appeal. He further submits that appellant is bona fide purchaser of the property in question which was not mortgaged with the respondent-Bank. Therefore, impugned order is not sustainable in the eyes of law. He further submits that property in question was not mortgaged with the respondent- Bank as is evident from Schedule-1 attached with the grounds of appeal at page 60-A.
3. Learned counsel of the respondent-Bank submits that Muhammad Saleem and his father Khalil- ur-Rehman secured a loan from the respondent-Bank and executed a mortgage deed in favour of the respondent-Bank qua the property in question on 11-6-1996. An agreement was also executed between the respondent-Bank and original loanees. According to the terms and conditions of the agreement the original loanees had to repay the loan to the respondent-Bank in easy instalments but the original loanees failed to repay the loan to the respondent-Bank in terms of the agreement.
The respondent-Bank filed a suit for recovery against the original loanees before the Banking Court. The Banking Court decreed the suit of the respondent-Bank vide judgment and decree, dated 19-10-2000. The respondent-Bank filed an execution petition before the Executing Court which is pending adjudication. The appellant has no locus standi to file objection petition before the executing Court as the property in question was mortgaged with the Bank as is evident from Schedule attached with the appeal at page 60-A. Learned counsel of the appellant relied upon Schedule-1 whereas he did not read Part-II of the Schedule which clearly contains the property in question. He further submits that learned counsel of the appellant wrongly relied upon the number of property in the Taxation Department which has no relevancy. He further submits that original documents of the property in question are still with the Bank. Therefore, the property in question which was purchased by the appellant's wife on 10-3-2000 from the original loanees is collusive transaction and subsequently his wife sold the property in question to the appellant on 12-5-2000.
He further submits that appellant also filed suit for recovery of Rs,3.12,481.64 against the respondent-Bank before the Senior Civil Judge, Lahore and tried to get the restraining order against the respondent-Bank. The respondent-Bank entered appearance and stated true facts before the Civil Judge. 1st Class and the appellant had withdrawn his suit on 28-4-2001. He summed up his arguments that appellant is not bona fide purchaser and the executing Court was justified to dismiss the execution petition of the appellant with valid reasons.
4. We have considered the contentions of the learned counsel of the parties and perused the record ourselves. It is proper and appropriate to reproduce material facts in chronological order to resolve the controversy between the parties:---
(1) Original loanees Muhammad Saleem and Khalil-urRehman secured loan from the respondent- Bank amounting to Rs,300,000 and mortgage deed was also executed between the original loanees and respondent-Bank on 11-6-1996.
(2) Respondent-Bank filed a suit for recovery before the Banking Court against the original loanees on 31-8-2000.
(3) The Banking Court decreed the suit vide judgment and decree, dated 19-10-2000.
(4) Appellant's wife purchased the property in question from original loanees/owners on 10-3- 2000.
(5) Appellant's wife sold the property in question to appellant on 12-5-2000.
(6) Schedule-II of Memorandum of deposit of title deeds contains number of the property in question.
(7) Original documents with regard to the property in question were not produced by the appellant before the executing Court as the same are still with the respondent-Bank.
' In case the aforesaid facts are put in juxtaposition then it brings the case in the area that appellant is not bona fide purchaser of the property in question coupled with the fact that property in question was mortgaged with the respondent-Bank. It is settled principle of law that mortgage of immovable property being a charge against property, would go with the same even if property in question was alienated. The appellant purchased the property in question without securing original documents from the original owners. Therefore, appellant's wife as well as the appellant are not bona fide purchasers. As regards the bona fide purchaser appellant as well as his wife had a duty to look into the registered deeds. Neither the appellant nor his wife had made any inquiry to find out from the Sub-Registrar with regard to charge over the property of the respondent-Bank in the absence of having made any inquiry and looked upon section 41 of Transfer of Property Act appellant's interest or his wife's interest cannot be held to be bona fide or protected. In arriving to this conclusion we are fortified by Maulana Riaz-ul-Hassan v. Muhammad Ayub Khan and another (1991 SCMR 2513). It is also settled principle of law that the principle contained in section 41 of the Transfer of Property Act is an equitable principle and cannot be availed of by a person who has come to the Court with unclean hands. In arriving to this conclusion we are fortified by Iqbal Sultan v. Chand Sultan and others (1990 CLC 366). The original sale between the original owners and wife of the appellant is void. Therefore, protection of section 41 of Transfer of Property Act is not available to the appellant. In arriving to this conclusion we are fortified by Mst. Amina Bibi and others v. Sadiq Ali and others 1994 MLD 2430. In case the aforesaid facts are put in juxtaposition then it brings the case of the appellant that appellant purchased the property in question from the original owners collusively to frustrate the rights of the respondent-Bank. Therefore, principle of bona fide purchaser is not attracted in the present case as per principle laid down by the Honourable Surpeme Court in Mst. Noor-un-Nisa's case (1994 SCMR 2087). The appellant has alternative remedy to file a suit against the original owners and the appellant has no remedy against the respondent-Bank. In arriving to this conclusion we are fortified by Muhammad Ibrahim v. Secretary, Government of Pakistan and others (PLD 1993 Karachi 478).
In view of what has been discussed above, we do not find any infirmity or illegality in the impugned order of the Executing Court and, therefore, the same is upheld and this appeal is dismissed with no order as to costs.