' The appellant-Bank had filed a suit for recovery of money against the respondent No,1 (borrower) as well as the respondent No,2 who was described as guarantor and who had allegedly mortgaged his property with the appellant. At the trial it was established that no memorandum of deposit of title deeds had been executed by the respondent No,2 nor was it shown that the respondent No,2 had authorized the respondent No,1 to create an equitable mortgage on the former's property. Accordingly the learned trial Court decreed the suit as against the respondent No,1, but explicitly recorded that appellant's claim against the respondent No,2 was not sustainable under law and dismissed the suit as against him.
2.. A decree was drawn-up on 23-5-1998 wherein, apparently owing to a clerical mistake, it was ordered that "mortgaged property in the aforesaid decree mentioned or a sufficient part whereof be sold...." The particulars of the property of the respondent No,2 were also specified in the "Schedule of mortgaged property" in the aforesaid decree. The respondent No,2 upon coming to know of the terms of the decree moved an application under section 152, C.P.C. For correction of the accidental mistake in the decree which had made it inconsistent with the judgment on which it was premised. The learned Banking Court issued notice to the appellant but apparently nobody appeared despite service and the application was allowed vide the impugned judgment dated, 4- 2-1999 and necessary correction made in the decree. This order has been called in question through this appeal.
3. Mr. Rizwan Ahmed Siddiqui learned counsel for the appellant was unable to dispute the legal position to the effect that Order XX, rule 6, C.P.C. Mandates that the decree shall agree with the judgment and whenever it does not do so the mistake can always be corrected under section 151 or 152, C.P.C. However, he attempted to argue that a Banking Court had no power to review its decree and in any case the same could not be done without hearing the appellant. We regret that we are not impressed by either of these contentions. No doubt the power of review is not available to a Banking Court established under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act XV of 1997 in terms of section 28 of the Act, the power to correct a clerical mistake or to bring a decree in accordance with the judgment can certainly not be characterized as a power of review available to a Civil Court under section 114 and Order 47, C.P.C. With respect to the second contention we may observe that it has been clearly recorded in the impugned order that notice of the application under section 152, C.P.C. Was issued and served upon the appellant but nobody appeared on his behalf. No material has been placed above before us to displace this finding.
4. In the circumstances, we suggested to learned counsel that in case the appellant was aggrieved by the finding of the learned Banking Court dismissing the suit against the defendant No,2 he should have preferred an appeal against the judgment and decree which was allowed to assume finality. Learned counsel argued that in terms of the decree initially drawn-up the appellant-Bank was granted the desired relief by way of sale of "mortgaged property", and therefore, there was no occasion to prefer an appeal at that time and the cause of action accrued only after the original decree was amended. Though, as observed above the mistake in the decree was only technical and could always be corrected. We are prepared to concede, on the principle that mistake of Court should not prejudice a party, that a case for condonation of delay in filing an appeal against the original decree is made out, and therefore, allowed Mr. Siddiqui to make his submission on merit.
5. On merits learned counsel was unable to find any defect in the impugned judgment of the Banking Court dismissing the suit against the respondent No,2. All that he could say was that an equitable mortgage upon the property of respondent No,2 had been created in terms of section 58(f) of the Transfer of Property Act inasmuch as title documents of the property were still in possession of the appellant-Bank. Indeed, the aforesaid provision does enable an equitable mortgage to be created by deposit of title deeds. Nevertheless, we are clearly of the view that no such mortgage can be created in respect of property the title whereof does not vest in the mortgagor. Or the mortgagor does not have any explicit authority to create a charge upon such property. In V.E.R.M.A.R. Chettyar Firm v. Ma Joo Teen and others (AIR 1933 Rangoon 299), a Full Bench of the Rangoon High Court held that "a document of title to immovable property mentioned in section 58(f) of the Transfer of Property Act, 1882, must disclose an apparent title of the property in, the mortgagor or to some interest therein". The same view was followed by this Court in Australasia Bank Ltd. v. Faruqui House Building Corporation Ltd. And 2 others (PLD 1975 Karachi 870) with which we entirely agree. We, therefore, find that dismissal of the appellant's suit against the respondent No,2 in the absence of a memorandum of deposit of title deed being signed by him was entirely unexceptionable. Obviously the respondent No,1 could not create a charge upon the property of the respondent No,2.
6. Even otherwise the proposition that one person cannot create a charge on the property of another is too obvious to require any sophisticated legal argument. We are constrained to observe that money was advanced by the appellant-Bank to the respondent No,1 without obtaining adequate security and such recklessness on the part of Bank officials, possibly acting in collusion with borrowers, cannot be provided shelter through protracted legal proceedings or by taking advantage of technical mistakes. We would, therefore, direct that a copy of this order be communicated to the President of the appellant-Bank for taking such action as he may deem appropriate. At the same time we would observe that Court officials ought to be more careful in preparing decrees and Presiding Officer must also be vigilant in ensuring that the decrees drawn- up are consistent with their judgments. Let a copy of this order also be communicated to the concerned officers.
' For the above reasons, this appeal is dismissed in limine together with listed application.