1997 PLP 1552 (CLC)

Abdul Hafeez Lakhc for the Judgment‑Debtor. Liaquat Merchant for Ducche Bank (in Judicial Miscellaneous No. 16 of 1995).. After hearing learned counsel for the parties and perusal of the record it transpires that in Suit No.746 of 1992 filed by Metropolitan Steel Corporation against the Federation of Pakistan and others, a decree in the sum of Rs.10,06,35,000 with interest at 14% from the date of the suit till payment was passed by a learned Judge on 26‑8‑1993 only against the Federation.

2. Subsequently in Judicial Miscellaneous No.16 of 1995 filed by Ducche Bank against Metropolitan Steel Corporation for its winding up an order of winding up was passed on 2‑1 1‑1995 by the Company Judge appointing Official Assignee of Karachi as Official Liquidator, In the meanwhile Metropolitan Steel Corporation filed Execution No.10 of 1994 against the Federation of Pakistan for recovery of principal amount and the interest due thereon. When this execution application came up for hearing before G.H. Malik, J. on 17‑4‑1994 with reference to section 92(2), C_P.C., he adjourned the hearing with a direction to office to report whether any report as required by aforesaid provision of law had been made to the appropriate Government. Subsequently on Civil Miscellaneous Application No.703 of 1994 moved on behalf of decree holder under section 82, C.P.C. by order dated 15‑5‑1994 learned Judge directed the office to send a report to the Government in terms of section 82, C.P.C. referred hereinabove. A notice was accordingly issued to the appropriate Government. by office where after Mr. Shaikh Haider, Advocate appeared in Court and sought two weeks' time to inform the concerned agency to do the needful. In the circumstances, hearing was adjourned from time to time and objections were filed thereto on behalf of the judgment‑debtor. The objections precisely were that the decree was wrongly passed; that the Judgment‑Debtor had moved an application under Order X, Rule 13, C.P.C. for recalling the decree and that the suit itself had been founded on the findings recorded by a Division Bench of this Court in Constitutional Petitions Nos.D‑1087 of 1989 to 1203 of 1989 filed by different persons dealing in iron and steel. A reply was filed to these objections on behalf of the decree‑holder contending that the judgment‑debtor had due notice of the original suit as well as the execution application and that the application for setting aside the decree was time‑barred filed only with a view to delay the proceedings. During the pendency of this application, judgment‑debtor went on changing counsel from time to time and lastly on 15‑5‑1996 Mr. Abdul Hafeez Lakho, Advocate moved a Civil Miscellaneous Application No.938 of 1996 under section 151, C.P.C. seeking the issuance of a notice of execution proceedings to the Official Liquidator since the decree‑holder company had been wound up as stated earlier. Although a notice was ordered to be issued to the decree‑holder as well as Official Assignee, the record does not show whether the Official Assignee in fact appeared in the aforesaid execution proceeding.

3. Interestingly during the pendency of the first execution application, Official Liquidator moved Execution Application No.46 of 1996 for recovery of the decretal amount by seeking the attachment of the funds of judgment‑debtor lying with State Bank of Pakistan and Treasury Office, Government of Pakistan. In this application, filing of earlier execution application or the filing of an appeal from the decree were not disclosed and in the relevant columns the reply recorded was nil perhaps due to unawareness.

4. When the subsequent execution application came up for hearing on 26‑1‑1997, a learned Judge passed an order directing the State Bank of Pakistan to deposit the decretal amount from Account No.0230000 with the Official Assignee within two weeks' time from the date of the order. By the same order, execution application was ordered to stand disposed of which in fact remained pending. However on 16‑2‑1997 Mr. Abdul Hafeez Lakho filed an application under section 151, C.P.C. for vacating the order dated 26‑1‑199? and further to stay the operation of the order. On this application another learned Judge passed an order staying the operation of the earlier order dated 26‑1‑199? till the next date of hearing. Thereafter, the application was listed on three occasions but adjourned for one or the other reasons.

5. On behalf of the Official Liquidator as well as the decree‑holder company a reply and counter‑affidavit respectively have been filed assailing the maintainability of the application. In the face of winding‑up order, I think, Metropolitan Steel Corporation cannot lawfully defend this application by filing a counter‑affidavit whereas the Official Liquidator is well within his rights to contest the same.

6. Upon hearing learned counsel for the parties, I am convinced that during the pendency of the first execution application, second execution application could not have been legally maintained. To my mind, proper course for the Official Liquidator was to continue with the earlier execution application A with the leave of the Company Judge but as the second execution application was filed with the express leave of the Company Judge, it can be extended to the continuance of the first execution application and in law perhaps no fresh permission of the Company Judge would be required in the circumstances.

7. There is no controversy with regard to this legal position and by consent I order that second execution application i.e. Execution Application No.46 of 1996 shall stand disposed of as misconceived whereas Execution Application No. 10 of 1994 is still pending on the file of this Court. Since there B is no order passed in this execution application directing the judgment‑debtor to deposit the decretal amount and the interest accrued thereon, I am inclined to make such order by directing the State Bank of Pakistan to deposit the decietal amount alongwith the interest due thereon with the Nazir of this Court within two weeks from today.

8. I am least impressed by the objections filed in this execution application on behalf of the judgment‑debtor as in law executing Court cannot go behind the Cdecree. The objections taken are in the nature of assailing the merits of the decree which can only be challenged by way of an appeal and it is stated at the Bar that such appeal is pending for the last over two years. To come up for further orders on a date in office. A A/M 180/k Order accordingly.