Messrs H.B.F.C. Instituted petition under section 30(1) A of H.B.F. Corporation Act, 1952 for the grant of decree/order for the delivery of vacant possession of the suit house described in the assignment and partnership deed against the predecessor-in---interest of respondents Nos.2 and 3 in the Court of learned District Judge, Peshawar, who passed ex parte decree vide judgment and decree dated 7-1-1996 in favour of respondents. Having come to know about the said decree, Mst. Shah Tareen, appellant filed objection petition No.5/11 in the said Court which was dismissed vide judgment/order dated 17-2-2000. Being not satisfied with the said judgment/order, the appellant has now filed appeal in hand.
2. Mr. Altaf Ahmad, Advocate the learned counsel representing the appellant argued that the appellant had purchased the suit house from predecessor-in-interest of respondents Nos.2 and 3 through Mutation No. 13947 attested on 3-7-1994 and she was put into possession of the said.
House, she is, therefore, owner in possession of the said house. The respondent No.1 had instituted suit against the predecessor-in-interest of respondents Nos.2 and 3, which was decreed in favour of respondent No. 1 which instituted execution petition and the learned executing Court directed for the auction of the suit house as the suit house was allegedly mortgaged with respondent No. 1.
Having come to know about the auction order, the appellant filed the objection petition.
3. It was also argued that the appellant had purchased the house in good faith and thus her rights were protected under the provisions of Transfer of Property Act. It was further argued that the appellant has purchased the suit house after satisfying herself regarding the ownership of predecessor-in-interest of respondents Nos.2 and 3 in Revenue Record and since the effect of the mortgage-deed was not given in the Revenue Record, therefore, she could not have the knowledge of mortgage of the house. The purchase by her was bona fide, therefore, her rights be protected.
4. On the other hand, Malik Haroon Iqbal, the learned counsel representing respondent No.1 argued that the suit house was mortgaged in favour of respondent No.1 as is clear from the assignment and partnership deed which was duly registered in the office of the Sub-Registrar, therefore, the same was notice to general public and the purchase of house if any by the appellant was void as per section 24 of the House Building Finance Corporation Act, 1952. The said sale was also against Regulation 17(2) of H.B.F.C. Investment Regulation, 1979.
5. It was also argued that the transfer of the mortgaged property was made during the pendency of the petition filed by respondent/ petitioner, therefore, the said transfer was also hit by the provisions of section 52 of the Transfer of Property Act.
6. It was also argued that the objection petition filed by the appellant was barred by time. The attachment of the mortgaged property was made under Order 21, rule 58, C.P.C. And objection petition if any could be filed within one year of issuance of first warrant of attachment which was issued on 4-9-1996 but the objection petition was filed on 28-11-1998, same was hopelessly barred by time.
7. It was also argued that the appeal filed by the appellant was also barred by 23 days. As per section 30(10) of H.B.F.C. Act, 1952 appeal against the order could be filed within 30 days. The impugned judgment/ order was passed on 17-2-2000 but the appeal in hand was filed on 11-4- 2000 which was barred by 23 days.
8. Replying the argument of the learned counsel for respondent regarding the time limitation or filing of appeal, the learned counsel for the appellant argued that as admitted by the learned counsel for respondent the objection petition was filed under Order 21, rule 58 read with section 47, C.P.C. And as per Article 156 of the Limitation Act, the appeal against the said order could be filed within 90 days, hence the appeal was within time.
9. I have heard the learned counsel for the parties and perused the record.
10. The argument of the learned counsel for the appellant that the appellant had purchased the house from predecessor of respondents Nos.2 and 3. After satisfying herself by inspecting the Revenue Record that there was no encumbrance over the said house, therefore, her purchase was bona fide and it was the duty of the respondent/ Corporation to effect the entries of mortgage in the Revenue Record, which was not done, therefore, her rights are protected under section 41 of the Transfer of Property Act has no force. It is apparent from the record that the house in question had been mortgaged by the predecessor of respondents Nos. 2 and 3 with H. B. F. C. Vide assignment and partnership deed No. 1352 Book No. 1, Volume No. 1408 dated 6-11-1984 when he obtained finance facility of Rs.97,000. He failed to repay the amount of finance Facility according to the stipulated terms, therefore a sum of Rs.82,000 stood outstanding against him on 30-11-1993. In order to recover the said amount, respondent/Corporation (H.B.F.C.) filed petition under section 30(1) A of H.B.F.C. Act, 1952 for grant of decree/order for the delivery of vacant possession of the mortgaged house and a decree as prayed for was also passed in, favour of H.B.F.C. On 7-1-1996. It was during the pendency of the said petition that the petitioner purchased the house in dispute vide Mutation No. 13947 attested on 3-7-1994. If there were no entries made in the Revenue Record the mortgage of the house in dispute, respondent/H.B.F.C. Cannot be blamed for the same for the reasons:-- Firstly, the mortgage was through a registered deed which was notice to public in general.
Secondly, under Article 7.18 of Chapter 7 of Land Records Manual, all mortgages and sub- mortgages, whether collateral or with possession whether contract for long or short period, and whether by deed or by oral agreement are required to be entered in mutation register. Redemption of such mortgages also required to be entered.
11. Likewise under Article 7.32 of the said Manual, the Registrars and Sub-- Registrars are under obligation to send monthly to Tehsildar particulars of all registered deeds which purport to transfer agricultural land. The procedure adopted is that the office of Qanungo forwards these slips to the Field Qanungo of the Circle who distributes them to the Patwaries concerned for effecting mutations. The Patwaries on receipt of the memoranda enter up in register the mutations and endorse the fate of entry on the memoranda giving serial number on each mutation and the date of entry. Since the house in question was mortgaged by way or registered assignment and partnership deed therefore, it was the duty of the Sub-Registrar to have sent a copy of the said deed in accordance with the procedure prescribed under Article 7.32 in, Chapter 7 of Land Records Manual.
12. It is also a matter of common knowledge that in order to find out as to whether the property has any encumbrance over it, an application under the prescribed manner is submitted to the Sub- Registrar of the area, where the property is situated, who after going through the contents of the relevant Register issues a non-encumbrance certificate if there is no encumbrance over the property. In case the property is under any encumbrance, this fact is mentioned by the Registrar while giving intimation to the applicant. In the case in hand the petitioner admittedly did not file any application in writing before the Sub-Registrar in order to find out as to whether the property she wanted to purchase is free from encumbrance or not. Therefore, the argument of the learned counsel that she had satisfied after inspecting the Revenue Record about non-existence of any encumbrance stands repelled by her own conduct.
13. The argument of the learned counsel for the petitioner that she was a bona fide purchaser and her rights were protected under section 41 of the Transfer of Property Act has no force what to speak of claiming any protection under section 41 of the Transfer of Property Act, the sale in favour of the petitioner itself was void due to section 24(3) of House Building Finance Corporation Act.
1952. The same is reproduced hereunder for convenience: "No land or house in respect of which investment is made shall be transferred, sold or charged, without the prior consent of the Corporation in writing, and payment of the Corporation's dues, including share in the capital appreciation and any such transfer, sale or charge made without such consent shall be void, and in the case of a sale, the Corporation shall have the option to buy out the partner's share in the property at the price settled between the partner and the intending buyer.
(4)
14. The purchase by the petitioner admittedly was without the consent of H.B.F. Corporation and the same was made without the payment of Corporation dues, therefore, the same was void till payment of H.B.F.C. Dues.
15. The argument of the learned counsel for the respondent that the objection petition filed by the petitioner was time-barred has force in it. The objection petition was admittedly filed under Order 21, rule 58 read with section 47, C.P.C. The time period prescribed for filing objection petition is that the same is to be filed without unnecessary delay, within a reasonable time or within one year of the date of first attachment of the property in execution of the impugned decree. The first attachment order in the case in hand was passed by the learned executing Court on 4-6-1996, whereas the objection petition was filed on 28-11-1998, which was clearly barred by time as prescribed under Order 21, rule 58, C.P.C.
16. The contention of the learned counsel for the respondents that the appeal in I hand was barred by 23 days because under section 30(10) of H.B.F.C. Act appeal or any order passed under section 30 of the Act ibid could be filed within 30 days has no force. Admittedly the appeal was not filed against the judgment/decree passed by the learned District Judge. The appeal in hand has been filed against the dismissal of the objection petition vide order dated 17-2-2000. The said objection petition was filed under Order 21, rule 58 read with section 47, C.P.C., therefore, the appeal against the impugned order passed by the executing Court would be governed under Article 156 of the Limitation Act, which prescribes 90 days period of limitation for filing appeal before this Court. The appeal in hand is, therefore, within time.
17. The perusal of the material available on record and keeping in view the above discussion, it can be safely held that the learned Court below had acted in accordance with law while dismissing the objection petition filed by the appellant. I have not been able to find out any illegality or any misreading/non-reading of evidence warranting interference by this Court, therefore, the appeal in hand is dismissed with no order as to costs.