' MIAN HAMID FAROOQ, J.---Muhammad Anwar Khan, the appellant/objector, through the filing of the present appeal, has called in question order dated 19-11-2001, whereby the learned Banking Court dismissed appellant's objection petition.
2. Facts leading to the filing of the present appeal are that respondent-Bank obtained a decree on 14-3-1992 for the recovery of Rs,9,41,201.45 against respondents Nos,2 to 5 from the Banking Tribunal. Consequent thereto the respondent-Bank filed an execution petition for the realization of the decretal amount, during which property No,SW-XII-S-19, Rustam Park, Nawankot, Lahore (hereinafter referred to as disputed property), statedly, owned and possessed by the appellant was attached. Seemingly aggrieved, the appellant filed an application under Order )0U, rule 52, Civil Procedure Code contending therein that he had purchased the disputed property from respondent No,4, vide sale-deed registered on 26-4-1987, even before filing the suit by the respondent-Bank and that the said property was not even mortgaged by respondent No,4 in favour of the respondent-Bank. It was further alleged in the objection petition that the appellant had filed a suit against respondent No,4 for delivery of the original title deeds and that the said suit had already been decreed. The said objection petition was opposed by the respondent-Bank and ultimately the learned Judge Banking Court, after hearing the parties, dismissed the said objection petition vide order dated 19-11-2001, hence the present appeal.
3. Despite service none has entered appearance on behalf of the respondents Nos,2 to 5, thus they are proceeded ex parte.
4. The learned counsel for the appellant has contended that the disputed property was never mortgaged in favour of the respondent-Bank by respondent No,4 and that the decree-holder, collusively and in order to protect the interest of judgment-debtors and the original mortgagor, namely, Muhammad Mohsin, who was not even impleaded in the suit as one of the defendants, intends to execute the decree through the sale of the disputed property, which has no nexus with the transactions undertaken between the respondent-Bank and other respondents. Conversely, the learned counsel for the respondent-Bank has contended that -respondent No,4, in fact, mortgaged the disputed property ,in favour of the respondent-Bank, acknowledged the mortgage of the said property by executing the memorandum of deposit of title deed and the original title deeds in respect of the disputed property were handed over to the respondent-Bank, thus according to the learned counsel, the property stood already mortgaged in favour of the respondent-Bank before the alleged purchase by the appellant, therefore, the disputed property is liable to be sold in execution of the decree.
5. From the available record, the learned counsel for the respondent No,1 could not point out that the appellant was arrayed as one of the defendants in the suit or any decree was passed against him. We have also examined the available record and do not find that any decree was passed against the appellant. In fact, this factual aspect of the case has been conceded by the learned counsel representing the bank that the appellant was neither the defendant in the suit nor is a judgment-debtor. This was, precisely, the case made out by the appellant before the learned Banking Court in his objection petition, in addition thereto that the disputed property was never mortgaged in favour of respondent No,1 even by respondent No,4, which pleas were not adhered to by the learned Banking Court, while passing the impugned order. We have perused the impugned order and find that as a matter of fact the contentions raised by the appellant were not at all considered by the learned Banking Court and it had proceeded to decide the objection petition only in view of A the stand point of the respondent-Bank. To our mind, the crucial question, as to whether the property was mortgaged in favour of respondent No,1 even by respondent No,4 Nazir Ahmad, needs determination through production of evidence, as without recording of the evidence of the parties, the said factual controversy cannot be resolved only after hearing the parties. On 26-3-2002, the learned counsel for the appellant produced the memorandum of deposit of title deeds, said to have been executed by respondent No,4, Nazir Ahmad, before this Court, which was undated. It was also observed, on the basis of the contention of the learned counsel for the appellant, that subsequently the memorandum of deposit of title deeds has been filed before the Executing Court, which appears to be dated 30-12-1985, which is materially different from the one produced earlier in the file. In view whereof, when there are prima facie two different memorandums of deposit of title deeds, as incorporated in order dated 26-3-2002 passed by this Court, it becomes more important to have sorted out the matter and resolved the said controversy, which was not possible in the absence of the evidence of the parties. As noted above, it is the case of the appellant that the property was not mortgaged, at any point of time in favour of respondent No,1, not even by Nazir Ahmad, respondent No,4, but we find that these matters have not been dealt with by the learned Banking Court and the impugned order has been passed in complete oblivion of the issues involved in the case.
6. In the above perspective, upon the examination of the objection petition and other available record, we are of the view that this was the fit case and the learned Banking Court, before passing the impugned order, ought to have investigated the claim and objections to the attachment of, the property, raised by the appellant by providing sufficient opportunity to the parties to produce evidence for establishing their respective claims. 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 has 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 bound to mechanically record the evidence of the objector in each and every case. Of course, the learned executing Court had to see in individual cases as to whether a particular case warrants the recording of evidence or not and that the objection petition has been filed frivolously, contumaciously or to delay the proceedings or it is a genuine application. Primarily, it is the function of the Banking Court to B decide as to whether the objection petition is to be decided after recording the evidence or only after hearing the parties. In the instant case, as noted above, we feel that this was the fit case, where the appellant should have been allowed an opportunity to produce evidence to establish his claim, has put forth in his objection petition regarding the attachment and sale of the property in execution of the decree, passed against respondents Nos:2 to 5.
7. 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 the same is not sustainable, hence we are inclined to set the same aside.
8. Upshot of the above discussion is that the present appeal is allowed and the impugned order dated 19-11-2001 is set aside with no order as to costs. The result, would be that the objection petition, filed by the appellant, shall deem to be pending before the learned Banking Court, who shall decide the same afresh, after affording adequate opportunity to the parties to produce their evidence to establish their respective claims and of course in accordance with law, preferably, within a period of three months.