2006 PLP 869 (CLD)

SYED ASGHAR HAIDER, J.

The appellant-Bank filed a petition under section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961, against respondents Nos. 1 to 3 for recovery of Rs.5,31,157.53, which was allowed on 5-7-1995. Respondents Nos. 1 to 3 filed appeal (F.A.O. No.205 of 1995) in this court, which was dismissed on 24-10-1996. Thereafter, the appellant filed an execution petition on 24-9-1995, Court Auctioneers were appointed and property was auctioned on 17-1-1997 for Rs.12,80,

000. Respondents Nos. 1 to 3 filed objections which were rejected and the sale was made absolute on 15-5-1997 by the learned Additional District Judge. The sale certificate was issued to respondent No.4 on 16-5-1997. Aggrieved of order, dated 15-5-1997, respondents Nos.1 to 3 filed appeal (F.A.O. No.134 of 1997) in this Court which was ultimately dismissed on 15-1-1998. W.P. No.11518 of 1999 was filed in this Court seeking benefit of Circular No. 19 alleging that the circular applies to all cases. This petition was disposed on 24-6-1999 with the observation that the petitioner may pursue his remedy before the Executing Court. An application was made before the Executing Court in terms of Circular No.19 of 1997 (Incentive Scheme) wherein it was permitted that the defaulters pay the principal amount and 5% mark-up. The respondents vehemently contended that they are entitled to this benefit. The learned Executing Court accepted this contention and held that the appellant return a sum of Rs.12,80,000 with interest (Rs.29,60,000) to the respondents. The appellant is aggrieved of the order, dated 3-3-2003, and has filed the present appeal.

2. Learned counsel for the appellant contended that the impugned order is illegal and void because the Executing Court could not go beyond the terms of the decree and reopen trial. The decree attained finality in 1995, therefore, the benefit of this scheme was not available to the respondents. The sale attained finality and a certificate was issued, therefore, there is patent illegality on record. Further the benefit of this scheme was available only to the borrowers, who approached the bank earlier to 6-7-1997, which did not happen in the present case and, therefore, all proceedings are void. The Executing Court has misinterpreted the directions of this Court and under section 47, C.P.C. Executing Court could only determine the questions of discharge and satisfaction of the decree and nothing else. He has relied upon Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. 1994 SCMR 22, Sheikh Muhammad Ikram and another v. Government of Pakistan 2001 MLD 1996; Dr. Idrees v. National Logistic Cell. 2002 CLC 1609; Muhammad Younas v. National Insurance Corporation 2002 CLC 757; Brig. (R.) Muhammad Aslam Khan v. The Government AJ&K 1983 CLC 1204; Mst. Yasmeen v. National Insurance Corporation 2004 CLC 979; Messrs Intercity Transport Service v. Judge Banking Court 2004 CLD 466, Nawazish Latif Bhatti v. ABL 2004 CLD 92, Silver Oil Mills v. Union Bank Ltd. 2003 CLD 1658, Ghulam Muhammad v. ADBP 2003 CLD 267, Messrs PILC v. Noorani Industries 2003 CLD 259 and Kiran Sugar Mills v. BEL 2003 CLD 1159.

3. Learned counsel for the respondents contended that the appellant had only made a prayer in the application under section 39 IDBP Ordinance that the property of the respondents be attached and there was no prayer for recovery of the amount. Further the order dated 15-5-1997 categorically stated that the proceeds of the sale shall be paid to the bank after the decision regarding the accuracy or otherwise of the amount outstanding against the petitioner. There has been absolutely no determination as the appellant violated the Court order and misappropriated and illegally used the respondents money. Therefore, the amount of Rs.29,60,000 is reasonable compensation, qua interest, he vehemently contended that only simple interest could be charged and no penalty could be inflicted, further interest could not be charged beyond the period stipulated in the agreement by the appellant and the benefit of the Prime Minister's Scheme was fully applicable to the respondents. He has relied on Allied Bank of Pakistan v. Messrs Alysah Garments 2001 MLD 1955, 2004 CLD 1155 and 827.

4. I have heard the learned counsel for the parties at length and considered their arguments. The suit was decreed to the extent of Rs.5,31,157.53 with future interest. The question of applicability of Circular No.19 was never in issue in this suit. Application to this effect was made after the dismissal of W.P. No.11518 of 1999, wherein Hon'ble Mr. Justice Karamat Nazir Bhandari (as he then was) observed that the plea of availing of "Loan Defaulter Scheme" should also be pursued before the Executing Court. This observation in no way directed the Executing Court to accept the contention of the respondents Nos. 1 to 3 that they were entitled to the benefit of Circular No.19. The observation clearly indicates that the Executing Court was required to proceed in accordance with law. The Executing Court has to restrict itself to the execution of the decree and cannot go beyond the terms of the decree. In the present case the Executing Court exceeded its jurisdiction and took cognizance of a matter, which was not within its purview. Further the question of applicability or otherwise of the incentive scheme to the execution proceedings has already been dealt with by this Court in the case reported as 2004 CLD 466 holding that this benefit is not applicable to execution proceedings. Likewise, the law pertaining to powers of the Executing Court has also been clearly decided in so many matters including 1994 SCMR 22 holding that the Executing Court cannot go beyond the terms of decree, therefore, grant of benefit under the incentive scheme to the judgment-debtors was not in accordance with law and is consequently set aside.

5. The next question which needs to be adjudicated is whether the judgment, dated 15-1-1998, passed by this Court in F.A.O. No.134 of 1997, was adhered to, paragraph 10 of the judgment clearly states that the price of the attached property would be paid to the bank after decision regarding accuracy or otherwise, of the amount outstanding against the appellant. It appears from the impugned order that proper determination in this context was not made. The parameters set were not followed, the sale proceeds were transferred to the appellant without proper tabulation of accounts. Likewise, the Executing Court awarded a sum of Rs.29,60,000 to respondents Nos. 1 to 3 without proper determination and addressing the legal and factual objections raised by the appellant. The Executing Court has also adverted to serious procedural lapses and deviations effecting the rights of the parties.

6. Therefore it is essential for the right decision of the g matter that the proceedings be remanded back to the Executing Court to determine the rights, obligations and liabilities of the parties as contained in paragraph 10 of the judgment, dated 15-1-1998, passed in F.A.O. No.134 of 1997, which reads as under:-- " For this purpose, the learned trial Court, has already directed the bank, to submit the entire balance sheet/account sheet, along with the particulars of the interest outstanding against the appellants, with further direction, that the price of attached property would be paid to the bank after the decision regarding the accuracy or otherwise thereof, of the amount outstanding against the appellants. The auction was confirmed by the learned Additional District Judge, subject to the above observations. It is not denied, that the accounts are being verified by the learned Additional District Judge for the purposes of ascertainment of the amount of interest, due from the appellants and, therefore, no grievance can be made by the appellants at this stage as the matter is still sub judice." Resultantly, this appeal is allowed, the impugned order is set aside and the Executing Court is directed to determine and address, the rights obligations and liabilities of all parties as contained in the judgment supra and in accordance with law and after providing full opportunity to them to raise all questions in this regard. M.H./I-26/L Case remanded.