' MIAN HAMID FAROOQ, J.--The appellant/objector through the filing of the present appeal, has assailed order dated 13-11-2001, whereby the learned Banking Court dismissed appellant's objection petition.
2. Briefly stated the facts leading to the filing of the present appeal are that the suit for recovery of Rs,7,43,180, filed by the respondent-Bank, against respondents Nos.2 and 3, was decreed by the learned Banking Court, vide judgment and decree dated 23-4-1998, and consequent thereto the decree holder-Bank filed an execution application. During the course of execution proceedings, when the decree holder-bank required the learned Executing Court to sell mortgaged property measuring 3-Kanals, 19 Marlas, the appellant filed an objection petition, contending therein, that he is the owner in possession of the property to the extent of 3 Kanals, 19 Marlas, which he purchased through different sale-deeds from various persons. It was, inter alia, contended in the objection petition that out of the total land measuring 3 Kanals, 19 Marlas, he only sold an area measuring 3 Marlas in favour of the respondent No,3, who has subsequently mortgaged it with the decree holder. The said petition was resisted by the decree holder through filing the reply, inter alia, submitting that an area of 3 Kanals, 19 Marlas was mortgaged by respondent No,3, who purchased the said land from the appellant through registered sale-deed and it is within their rights to recover the decretal amount through the sale of the said land/property. It was further submitted that the sale-deed in respect of 3 Marlas of land appears to be forged. The learned Banking Court, after hearing the parties, proceeded to dismiss the said objection petition, vide impugned order dated 13-11-2001, hence the present appeal.
3. Learned counsel for the appellant, while referring to a copy of sale-deed dated 7-8-1994, has submitted that he had sold the land only measuring 3 Marlas for a consideration of Rs,36,000 to the respondent No,3, but later on he forged the said sale-deed, so as to incorporate the total land measuring 3 Kanals, 19 Marlas by changing the first two pages of the sale-deed. He has added that the appellant is still the owner of land measuring 3 Kanals, 16 Marlas, which was never mortgaged in favour of the decree holder-Bank and, thus, the same cannot be auctioned in execution of the decree. Conversely, learned counsel for the respondent-Bank, while relying upon certain documents, has vehemently asserted that the respondent No,3, at the time of availing of the loan facility, mortgaged the total land measuring 3 Kanals, 19 Marlas inasmuch as the original sale- deed was handed over to the decree holder-Bank. He has further added that other documents, which were executed at the time of execution of mortgage of the said land, show that total land measuring 3 Kanals, 19 Marlas was in fact mortgaged by respondent No,3. His further submission is that the sale-deed, in respect of 3 Marlas, is a forged document and has been manipulated by the said judgment debtor in connivance with the appellant.
4. We have examined the record and find that there are two sale-deeds, executed by the objector in favour of the respondent No,3 on the same date, i.e. 7-8-1994, one pertains to the land measuring 3 Kanals, 19 Marlas and the other relates to the land measuring 3 Marlas. Case of the appellant is that he has sold the land measuring 3 Marlas through the said sale-deed, while the stance of the Bank is that land measuring. 3 Kanals, 19 Marlas was sold by the appellant, which total land was subsequently mortgaged in favour of the Bank. Both the parties are relying on various documents in order to substantiate their respective claims. However, we find from the perusal of the impugned order that the learned Banking Court without holding any inquiry into the respective claims of the parties and without giving any findings, came to the abrupt conclusion that "the sale-deed in respect of 3 Marlas of land, which the objector had allegedly sold to the judgment debtor though registered on 18-8-1994, appears to be forged." We feel that in order to resolve the controversy in hand, at least the record of the Sub-Registrar ought to have been summoned by the learned Executing Court. The grievance of the appellant, in this respect, is that although the learned Executing Court called for the record of Sub-Registrar, vide order dated 16-3- 2001, but at the time of deciding the objection petition, the same was ignored and not reconsidered. We are of the view that such factual controversy could not have been resolved only after hearing the parties and examining the sale-deed, as undertaken by the learned Executing Court, and it should have conducted a detailed inquiry.
5. In the above perspective, to our mind, this was the fit case, in which the learned Executing Court, before passing the impugned order, ought to have investigated the claims and objections to the attachment of the property raised by the appellant, by providing sufficient opportunities to the parties for establishing their respective claims through the production of evidence. It has been held in Mst. Surayya Begum v. Muslim Commercial Bank Ltd. And 4 others PLD 1990 Lahore 4 that "all claims relating to the rights, title or interest of the claimant or objector in the attached property have to be adjudicated upon and determined by the Court and no separate suit shall lie to establish such title, right or interest". It does not mean that the learned Executing Court is under an obligation, in each and every case, to mechanically record the evidence of the objector and the objection petition must be decided after hearing the evidence. Of course the learned Executing Court had to see in individual cases as to whether particular case requires the recording of evidence or/and that the objection petition has been filed frivolously, contumaciously and to delay the proceedings or it is a genuine application requiring the recording of the evidence. Primarily, it is the function of the learned Executing Court to decide as to whether the objection petition is to be decided after recording the evidence or only after the parties. In the particular circumstances of the case, as noted above, and discernible from the available record, we are of the firm view that this was the fit case, where the points raised in the objection petition should have been decided after calling upon the parties to produce their respective claims through the production of evidence.
6. Upon the examination of the impugned order, we find that the same is neither in conformity with the record of the case nor in consonance with the law on the subject, thus, we are of the view that the same is not sustainable in law and we are inclined to set the same aside.
7. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 13-11-2001 is set aside with no order as to costs. The result would be that the objection petition, filed by the appellant, shall be deemed to be pending before the learned Banking Court, who shall decide the same after affording adequate opportunity to the parties to produce their evidence to establish their respective claims and of course in accordance with law.