' MAULVI ANWARUL HAQ, J.---In execution of a decree passed by a learned Banking Tribunal, Lahore, on 17-3-1996 in favour of the appellant and against the respondent No,1, a property belonging to the said judgment-debtor was attached vide order dated 14-10-1996. While the 'attachment was continuing, on 24-4-1998 the respondent No,2 filed an objection petition intimating the Court that the property stands mortgaged with the respondent No,2. While the said application was pending the property was sold in a public auction on 27-7-1998 and the sale was confirmed on 7-8-1998.
The appellant filed an application on 10-11-1998 for the release of the consideration amount of Rs,34,00,000. It was undertaken by the appellant that the amount being withdrawn shall be re- deposited in Court without any objection if so ordered at any time. Consequently the amount was released and a cheque in the sum of Rs,35,50,316 was delivered to the appellant on 11-11-1998. On 2- 5-2000, the respondent No,2 filed an application before the learned Executing Court stating that the said objection petition is pending; that the property stands mortgaged with the respondent No,2. It was prayed that the appellant be directed to re-deposit the said amount and the same be released to respondent No,2. It appears that yet another application had been filed by Union Bank Limited making the same prayer on the basis of some claim of its own. Both the applications were taken up together and vide order dated 19-5-2001 learned Executing Court directed the appellant to deposit the said amount in Court for onward payment to the respondent No,2. On 15-6-2001 the appellant filed an application, purporting to be under section 151, C.P.C. Praying that the said order dated 19-5-2001 be set aside. This application was dismissed by the learned Executing Court on 19- 6-2001.
2. Learned counsel for the appellant contends that there is no provision of law, that warrants the order dated 19-5-2001 passed by the learned Executing Court directing his client to deposit the amount for payment to the respondent No,2. The learned counsel for the respondent No,2 objects that the appeal is not competent and in any case is barred by time. Further contends that there is no denial that first charge on the property in the form of said mortgage exists in favour of respondent No,2 and this being so, at its option, the respondent No,2 is fully entitled to claim and receive the said amount as the claim for mortgage money remains unsatisfied and the mortgage remains unredeemed. The learned counsel for the appellant in response to the said preliminary objection states that the appeal had been filed against an order relating to attachment proceedings/objections, the appeal would be competent under the provisions of C.P.C. Against both the orders and against the latter order passed on 19-6-2001 the appeal is within time.
3. We have gone through the records, with the assistance of the learned counsel for the parties. We do find that there is no denial of the assertion that the property stands mortgaged with respondent No,2 before the point of time when it was attached and then put to sale. It is also on record that the respondent No,2 had joined the proceedings on 24-4-1998 and allowed the property to be sold withut any objection. In these admitted circumstances, to our mind, the learned counsel for respondent No,.2 is right in urging that his client has a right to claim the said amount. Section 73(1)
(b), C.P.C. Fully supports the said contention of the learned counsel.
4. As regards the said objection of respondent No,2 is concerned, here as well we find him on strong footing. The right of appeal has been conferred under section 21 of the Banking Companies (Loans, Advances, Credits and Finances) Act, 1997. We find that none of the impugned orders fall within the category of orders stated in section 21(1) of the said Act, against which right of appeal has been given. We, therefore, do find this appeal to be incompetent. In view of this finding objection pertaining to limitation becomes irrelevant.
5. Before parting with this judgment, we may note here that the learned counsel for the respondent No,2 states that his client has decided to exercise the option of C claiming the sale proceeds of the property and not to enforce the mortgage otherwise for the sale of the property itself.
6. For reasons stated above, the F.A.O. Is accordingly dismissed with no orders as to costs.