2006 PLP 804 (CLD)

MUHAMMAD SAYEED AKHTAR, J.

The plaintiff/ appellant-Bank filed a suit for recovery of Rs.2,14,10,

426. A decree for a sum of Rs.1,58,77,840 was passed on 16-12-2002. Subsequently the appellant-Bank moved an application under section 152, C.P.C. for amendment of the judgment and decree, dated 16-12-2002. The Banking Court modified the decree qua the defendants 4 to 6 for a sum of Rs:49,76,133 vide order, dated 5-4-2003. The respondents moved an objection petition before the executing Court who while deciding the same on 2-12-2005 held that the liability of the respondents was only to the extent of Rs.49,76,133 and declined to order for the payment of the cost of funds.

2. Learned counsel for the appellant-Bank contended that the executing Court could not go beyond the decree and thus fell in serious error by disallowing costs of funds to which the bank is entitled under section 3 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. He maintained that the order, dated 5-4-2003 had attained finality and was not open to interference. Conversely the learned counsel for the respondents submitted that there was no mention of the cost of funds in the subsequent order passed on 5-4-2003. The decretal amount has been paid. The respondents were only guarantors. The learned executing Court has rightly declined the realization of costs.

3. We have gone through the impugned order, perused the record and considered the arguments of the learned counsel for the parties. No doubt the decree, dated 16-12-2002 was amended by the Judge Banking Court-IV, Lahore vide order, dated 5-4-2003 in which the liability of the respondents was reduced to Rs.49,76,133 along with the cost of funds. However, there is another order of the same date on the record which A reduced as under:

"I may utilize opportunity to make further modification in the judgment and decree, that the decree for the corrected amount is valid against defendants Nos. 1 to 3 but qua defendants 4 to 6 it would be to the extent of Rs.49,76,133 (forty nine lac., seventy six thousand, one hundred and thirty three rupees only) the amount due against the Cash Finance Facility as they had stood guarantee only for that finance facility alone. The correction be made in the judgment and decree-sheet." It is thus clear that the cost of funds was not awarded in the modified judgment/decree. Even otherwise the respondents are only guarantors and they have satisfied the decree to their extent. We do not find any substance in this appeal, therefore, A dismiss the same. M.B.A./H-8/L????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.