1. ' By this application under Order XXI, rule 58, Order XXXIX, rules 1 and 2 read with sections 151, C.P.C.
2. And 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the applicant seeks recovery of the following machines:--
(1) Two Plastic Moulds for outer case.
(2) One Automatic Cassette Imprinting System.
(3) One Plastic Mould for "P" case.
3. ' The applicant claims to have leased the aforesaid machines to the judgment-debtor in the ordinary course of their business at a monthly rent of Rs,56,186 per month. On failure of the judgment-debtor to make payment of monthly rent the applicant instituted a suit for recovery of the outstanding amount of rent amounting to Rs,25,59,350 in the Banking Court No,4 at Lahore and the same was registered as Suit No,152 of 1996 and on 31-10-1996 it was decreed in favour of the applicant. Learned counsel for the applicant contended that in addition to the recovery of the amount under the decree, which was only amount of arrears of rent, the applicant is entitled to the property being owner of the same. The application is supported by the copies of the following documents:--
(1) Lease agreement dated February 25, 1993.
(2) Judgment and decree in Suit No,152 of 1996 dated 31-10-1996 passed by the Banking Court, Lahore. -
(3) Execution Application No,16 of 1998.
(4) Writ of attachment in Exh. No,16 of 1998.
(5) Publication dated 22-12-2001.
(6) Public Notice dated 9-1-2002.
(7) Letter dated 10-1-2002 received from Industrial Restructuring Corporation and reply of the said letter dated 19-1-2002.
4. ' The application is vehemently opposed by Mr. S. Mazhar-ul-Haque, Advocate. His contention is that the application under Order XXI, rule 58, C.P.C. Is not maintainable as the matter does not pertain to attachment for sale of a property under mortgage which is covered under Order 34, and does not attract the provisions of Order XXI, rule 58. In support of his contention learned counsel has placed reliance on the cases of Australasia Bank Ltd. v. Messrs Juma Khan Agha Javed Corporation PLD 1976 Kar. 414 and Mst. Razia Ghafoor v. Messrs Eastern General 1987 CLC 777.
5. ' On perusal of the record and after hearing the learned counsel it appears that the present execution application has been moved under section 18 of the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997 and Order XXI, rule 11 read with section 151, C.P.C. No reference to any provision of Order XXXIV, C.P.C. Has been made, On being pointed out Mr. Mazhar- ul-Haque could not furnish any satisfactory reply. However, in view of the case-law it cannot be disputed that the execution of decree for mortgage property does not call for order of attachment.
6. The case before Mr. Justice Naeemuddin Ahmed, as his Lordship then was, the property situated at Lasbela, Karachi, was a plot of land partially occupied by the objector and as it was also mortgaged property, the question of attachment and inquiry under the provisions of rule 58 of Order XXI could not arise. In the case of Razia (supra) it was held that:-- "Substantial amendments have been made in rules 58, 59, 60, 61 and 62 of Order XXI, C.P.C. By Ordinance XII of 1972 and according to the amended provisions, an investigation of claims and objections under rule 58 of Order XXI, C.P.C. Relates not to possession but to title, right or interest of the intervenor in the attached property. In my view, on account of the amendments made in the aforesaid rules, the intervenor cannot make out a case for release of attachment in an application under Order XXI, rule 58, C.P.C. By only establishing that he was in possession. He will have to establish that the possession is such, which is recognized by law as a right or interest in the property. For example, a trespasser or a bare licensee is not a person, who can be said to have any title to or right or interest in the property. On the other hand, a person having obtained possession under an agreement of sale having paid part or all the consideration would be a person having a right or interest in the property."
7. ' The case of the applicant is neither that of a trespasser nor is a claim over immovable property subject to mortgage. As such these case-laws are distinguishable. In the instant case no property has been ordered to be attached so far. Section 19(7) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 reads as follows:--
19. Execution of decree and sale with or without intervention of Banking Court.--
(7) Notwithstanding anything contained in the Code of Civil procedure, 1908 (Act V of 1908), or any other law for the time being in force:--
(a) to Banking Court shall follow the summary procedure for purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of filing of the claims or objections;
(b) if the claims or objections are found by the Banking Court to be mala fide or filed merely to delay the sale of the property it shall impose a penalty up to twenty per cent. Of the sale price of the property:
(c) the Banking Court may, in its discretion, proceed with the sale of the mortgaged, or pledged hypothecated property if, in its opinion the interest of justice so require: ' Provided that the financial institution gives a written undertaking that in the event the objections are found to be valid, or are sustained, it shall in addition to compensating the aggrieved party by the payment of such amount as may be adjudged by the Banking Court also pay a penalty up to twenty per cent. Of the sale proceeds and such amounts shall be recoverable from the financial institution in the same manner as in execution of decrees passed hereunder.
8. ' The above section is a special law promulgated to deal with the questions arising out of the cases subject to such applications and is attracted in the present case. Mr. Mazhar-ul-Haq, learned counsel for the decree-holder, has not been able to substantiate his contention that after obtaining the decree applicant is no longer entitled to claim possession of the machines or to show that the decree obtained by the applicant was for any amount except for recovery of arrears of outstanding rent due and payable by the judgment-debtor to the present applicant. Sufficient material has been placed on record in shape of the sale invoice executed in 1993 and lease agreement details whereof are already set forth above and there is no material on record to the contrary. On the basis of the aforesaid documents it is established that the applicant is the owner of the aforesaid machine and is entitled to the same. Accordingly, this application is allowed.
9. ' At this stage Mr. Juser Pishori examined the inventory prepared by the Official Assignee and is unable to identify any of the three items leased out by the applicant in the said inventory. However, he requests for an opportunity to accompany the Official Assignee or his representative as the case may be, alongwith representative of the applicant, the decree-holder and CIRC to the premises where the machines/equipments are lying and if the items are identified, the same may be handed over to the applicant. The request is allowed. Order accordingly.