SYEDA TASNEEM IJAZ Vs SPECIAL JUDGE BANKING COURTS ETC.

PLJ 2021 Lahore (Note) 55 Present: ABID AZIZ SHEIKH AND SHAMS MEHMOOD MIRZA, JJ.

Mst. SYEDA TASNEEM IJAZ, etc.--Petitioners versus SPECIAL JUDGE, BANKING COURT NO. II, LAHORE, etc.--Respondents C.R. No. 88325 of 2017, decided on 18.10.2018.

Civil Procedure Code, 1908 (V of 1908)-- ----Ss. 12(2) & 115--Financial Institutions (Recovery of Finances) Ordinance, (XLVI of 2001)-- Suit for recovery--Decreed--Title deed was deposited in decree holder bank--Mortgage of property--Sale of mortgaged property--Absence of original sale-deed--Bona fide purchaser-- Application for setting aside decree passed by Banking Court--Challenge to--Title deeds in favour of Mst. Anjum Begum as well as Respondent No. 4 were deposited with respondents/ decree holder bank which continued to be in possession of same--It is quite clear that original sale-deeds of property; in question of both were tendered with respondents/decree holder bank at time of execution of mortgage--Absence of original sale- deed in favour of Mst. Anjum Begum ought to have put appellant notice requiring her to make necessary inquiries in regard thereto--In absence of any such effort, it cannot be said that Appellant No. 1 is a bona fide purchaser without notice--Banking Court, therefore, rightly dismissed application filed by appellant under Section 12(2) of Code of Civil Procedure, 1908--Appellant has not been able to point out any legal infirmity in order passed by banking Court--Appeal dismissed. [Para 4, 5 & 6] A, B & C 2009 CLD 140 ref.

Mr. Aamer Sohail Khan Advocate for Petitioner.

Mr. Ali Raza Advocate for Respondent No. 2.

Mr. Tariq Iqbal Advocate for Respondent No. 3.

Nemo for Respondent No. 4.

Date of hearing: 18.10.2018.

ORDER

This revision petition is filed against order dated 7.10.2017 passed by the banking Court. The remedy of revision against the orders of the banking Court is not provided in the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance). Since the revision was filed on 13.10.2017 against order dated 7.10.2017, it can be treated as an appeal under Section 22 of the Ordinance. We accordingly convert the revision into an appeal under Section 22 of the Ordinance. Office shall number the case accordingly.

2.Appellant No. 1 filed an application under Section 12(2) of the Code of Civil Procedure, 1908 (CPC) for setting aside judgment and decree dated 28.11.2013 passed by the banking Court. It was alleged in the application that the Appellant No. 1 was the bonafide purchaser of the mortgaged property from the mother of Respondent No. 4 judgment-debtor through a sale-deed registered on 11.08.2011. The respondent/decree holder bank contested the application by filing its reply in which the stance of the Appellant No. 1 was controverter.

3.Learned counsel for the appellant stated that Appellant No. 1 was a bona fide purchaser for valuable consideration without notice of the alleged mortgage in favour of respondents/decree holder bank. It is furthermore stated that Mst. Anjum Begum, mother of Respondent No. 4, sold the property in question to Respondent No. 4 on 1.6.2006 and thereafter sold the same in favour of Appellant No. 1 on

4.We have been provided a copy of the memorandum of deposit of title deed dated 17.11.2006 in respect of the property in question which shows that title deeds in favour of Mst. Anjum Begum as well as Respondent No. 4 were deposited with the respondents/ decree holder bank which continued to be in possession of the same.

5.We inquired from the learned counsel for the appellant as to whether the original sale- deed of Mst. Anjum Begum was inspected and taken in possession at the time of alleged sale to which he showed his ignorance. Be that as it may, it is quite clear that the original sale-deeds of the property; in question of both Mst. Anjum Begum and Respondent No. 4 were tendered with

the respondents/decree holder bank at the time of execution of the mortgage on 17.11.2006. The absence of the original sale-deed in favour of Mst. Anjum Begum ought to have put the appellant the notice requiring her to make necessary inquiries in regard thereto. In the absence of any such effort, it cannot be said that Appellant No. 1 is a bona fide purchaser without notice. A learned Division Bench of this Court in identical circumstances held in the case of Habib Bank Limited v. Syed Muhammad Haroon and four others 2009 CLD 140 as under:

As a general principle if any immovable property is under a charge or mortgage and subsequently alienated, the charge and mortgage would follow the transfer except in the case of bona fide purchaser without notice of such charge or mortgage. It is a settled law that before equitable defence of bona fide purchaser under Section 41 of the Transfer of Property Act can be accepted. It must be established that such purchaser has exercise due care and diligence in ascertaining the clean vendible title of his transfer. It is equally settled law that search and reliance solely of the revenue record is not sufficient to attract Section 41 of the Transfer of the Property Act. Reference in this behalf has been made to the judgment reported as Maulana Riaz-ul-Hasan v. Muhammad Ayyub Khan and another 1991 SCMR 2513; Citi Bank N.A. through Branch Manager v. Munir Ahmad Gill and 2 others 2000 YLR 2938.

Furthermore, any person who acquires property without obtaining the title deed of the original transferor cannot also be said to have exercised due care and caution so as to enable him to take the defence of a bona fide purchaser as is evident from the judgment reported as Mst. Nasiban Bibi v. The Australasia Bank Lahore and others 1970 SCMR 657; Citi Bank N.A. through Branch Manager v. Munir Ahmad Gill and 2 others 2000 YLR 2938 and Muhammad Anwar Khan v. Habib Bank Limited and 4 others 2005 CLD 165. (Emphasis Supplied)

The ratio of this judgment is fully applicable to the facts of the present case.

6.The banking Court, therefore, rightly dismissed the application filed by the appellant under Section 12(2) of the Code of Civil Procedure, 1908. The appellant has not been able to

point out any legal infirmity in the order passed by the banking Court. This appeal being devoid of any merit is accordingly dismissed.

(Y.A.) Appeal dismissed