' MUHAMMAD AKHTAR SHABBIR, J.---The appellant has taken exception to the order dated 11-6-2003 passed by Judge Banking Court, Sargodha dismissing the objection petition filed by the appellant.
2. This E.F.A. Arises out of the suit for recovery of Rs.3,26,119 instituted by decree-holder/respondent No,1 against Muhammad Siddique and his wife respondents Nos.5 and 6 which had been decreed on 31-10-2000 with costs. During the hearing of the execution petition, the wife of Muhammad Siddique respondent No,5, died and her legal representatives were impleaded as judgment- debtors.
3. The present appellant filed an objection petition before the Judge Banking Court stating therein that the property under auction had already been mortgaged to her by Muhammad Siddique judgment-debtor and his wife Mst. Zubaida Begum for a consideration of Rs.3,00,000 through a registered mortgaged-deed dated 26-4-1995 and as per terms and conditions of the mortgaged, the mortgaged money was to be repaid till 26-7-1996 which has not been paid to her till the said date and after that as per terms of the mortgaged-deed she became the owner of that property.
She filed a suit for foreclosure of mortgage in the Civil Court. This objection petition had been dismissed on 22-5-2001 and the Executing Court had appointed one Mr. Nisar A. Shaheen, Advocate as Court-auctioneer. The said order was challenged by the present appellant through F.A.O. No,195 of 2001 but ultimately the same was dismissed for lack of instructions by this Court on 6-12-2001.
4. The judgment-debtor Muhammad Siddique had also filed a writ petition before the High Court, wherein, the said judgment-debtor had undertaken to pay the total outstanding loan amount within three months w.e.f. 6-7-2001. This commitment was not complied with by the judgment- debtor and the writ petition was disposed of. After the dismissal of F.A.O. No,195 of 2001 filed by Mst.
Razia Sultana present appellant and the writ petition filed by Muhammad Siddique, judgment- debtor, the property of the judgment-debtor was auctioned and the Court-auctioneer submitted his report. The judgment-debtor No,1 /respondent No,5 and the appellant both filed objection petitions challenging the auction report separately which were dismissed by the learned Judge Banking Court through the impugned order.
5. Learned counsel for the appellant contends that the property in dispute had been mortgaged in favour of the appellant by Muhammad Siddique and his wife Mst. Zubaida Begum, the judgment- debtors on 26-4-1995 through a registered-deed and a decree for specific performance of contract in favour of Mst. Razia Sultana present appellant was also passed by the Court on 18-4- 2002 and she is bona fide owner of the property. Further contends that the appellant has not obtained any loan from the respondent No,1 and property in dispute is not liable to be auctioned.
Further contends that the auction-purchaser/respondent No,4 had not deposited the full consideration sale-price and under the direction of the Executing Court, the appellant has deposited Rs.50,000. Further contends that the Court-auctioneer has not fulfilled the requirements of order for auction of the property and the auction-purchaser has given no notice to the judgment-debtor as well as to the appellant.
6. On the other hand, learned counsel for the respondents Nos.1 and 4 have vehemently opposed the arguments of the learned counsel for the appellant contending that property was already hypothecated/mortgaged with decree-holder/ respondent No,1 on 19-9-1991 and it could not be further mortgaged in favour of the present appellant.
7. We have considered the arguments advanced by the learned counsel for the parties with their kind assistance and perused the record.
8. The appellant was directed by the Court to deposit a sum of Rs.2,00,000 with the respondent No,1 but she failed to comply with the order of the Court and for her non-compliance, the auction proceedings had taken place. The appellant also made commitment in this Court on 5-7-2001 to deposit a sum of Rs.2,00,000 with the Executing Court out of the decretal amount and to furnish security for the balance amount to the satisfaction of the Executing Court. This undertaking has also not been complied with by the appellant and her F.A.O. No,195 of 2001 was dismissed as withdrawn.
9. It is an admitted position that the respondents Nos.5 and 6 obtained financial facility from the respondent No,1 and hypothecated/mortgaged the property in dispute in favour of the decree- holder/respondent No,1 on 19-9-1991. The said respondents were not competent to further alienate the property in favour of appellant through, a mortgaged-deed as the same was not free from encumbrances. The owners of the property judgment-debtors/respondents Nos.5 and 6 malafidely mortgaged the property in favour of the present appellant despite the fact that it was already mortgaged with the House Building Finance Corporation. The suit for recovery of the loan amount had been decreed on 31-10-2000 against the judgment-debtors and the suit for specific performance of contract in favour of present appellant had been decreed on 18-4-2002.
10. The most significant feature of the case is that the defendants of the suit Muhammad Siddique etc. Respondents Nos.5 and 6 absented from the Court and they were proceeded against ex parte which is sufficient to infer that the appellant and judgment-debtor/respondents Nos.4 and 5 have clapped hands and got a collusive decree just to avoid the satisfaction of the decree passed by Judge Banking Court. The earlier objection petition filed by the appellant was dismissed on 22-5- 2001 and against the said order, appeal filed by the appellant had also met with failure and the order of the Judge Banking Court attained finality. The subsequent objection petition filed by the appellant on the same ground was not competent. The Court-auctioneer had issued proclamation with regard to the schedule of auction of the property and also issued notice to all concerned parties. The appellant was conscious of the fact of auction proceedings of the property in dispute but slumbered at her rights remaining in state of dormancy.
11. The auction proceedings of property of judgment-debtor have already been confirmed by the Executing Court in favour of auction-purchaser/respondent No,4 subject to payment of remaining auction price and in case the auction-purchaser failed to deposit the sale price within the prescribed period, it would not give any vested right to the appellant. It is a matter between the decree-holder and the auction-purchaser or the Court. This objection of learned counsel for the appellant is misconceived. Learned counsel for the appellant has not been able to persuade us to interfere with the impugned order passed by the Judge Banking Court.
12. For the foregoing reasons, this E.F.A. Being devoid of force is dismissed with the direction that the amount of Rs.50,000 deposited by the appellant with the Executing Court shall be refunded to her.