2004 PLP 469 (CLD)

Naseem Ahmad Khan and Shams Mehmood Mirza for Respondents. Date of hearing: 4th March, 2003. JAWWAD S. KHAWAJA, J.‑‑‑This appeal and E.F.A. No. 19 of 2003 are being decided together as the appellants in both appeals are aggrieved of the same order of the learned Single Bench dated 27‑12‑2002.

2. The facts leading up to the filing ‑of these appeals are relatively straightforward. Habib Bank Ltd. respondent decree‑holder had filed a suit against Messrs Leatherite Limited (respondent No.2) and others including the appellants. A joint and several decree dated 30‑3‑1998 was passed against all the defendants including the present appellants for a sum of Rs.80,366,920.68. The said decree has attained finality as neither party has preferred any appeal thereagainst.

3. Habib Bank thereafter filed a petition for execution of the aforesaid decree. It was asserted by the Bank that the judgment‑debtors had not paid the decretal amount. The Bank, therefore, prayed for execution of the decree by arrest and' detention of the judgment‑debtors and through sale of their properties. The learned Executing Court issued notices to the judgment‑debtors to show cause as to why' they should not be detained in execution of the decree. Upon the failure of the judgment‑debtors to appear and show‑cause, bailable warrants for their arrest were issued. The appellants alongwith other judgment‑debtors thereafter entered appearance before the Executing Court. They resisted the application seeking their arrest and detention and also challenged the right ‑of the decree holder Bank to execute the decree against their properties.

4. The mainstay of the case set up by the appellants is that ‑the decree cannot be executed against them in view of the fact that Leatherite Limited respondent judgment debtor has pledged its goods with the decree‑holder Bank to secure the finance provided by the said Bank. On this basis, it was argued that until the sale of the pledged goods is effected, the decree would not be executable against the appellants. According to the appellants the value of the goods pledged with the decree‑holder Bank is Rs.81.305 million and as such the decree obtained by the Bank can be satisfied through sale of the pledged goods.

5. At this point, it is pertinent to note that Leatherite Ltd. was ordered to be wound up by a learned Company Bench vide order dated 12‑3‑1998. The winding up proceedings are continuing before the learned Company Bench. Learned counsel for both sides have drawn our attention to certain orders passed by the learned Company Bench in relation to sale of the pledged goods. Since the matter is being dealt with by the said Bench, which is the competent forum for deciding all questions relating to such pledged goods, we are not called upon in these proceedings to decide as to whether or not the pledged goods have been sold in accordance with the orders of the learned Company Bench. Needless to say the parties shall be free to assert their respective contentions before the learned Company Bench.

6. The fact remains that the decree obtained by Habib Bank Ltd. dated 30‑3‑1998 is still unsatisfied. The said decree, as noted‑ above, has been passed against the defendants including the present appellants jointly and severally. The said decree therefore, can be executed by all means available under law including execution through sale of the properties of the appellants and, where justified, by detaining the appellants in prison. Before us learned counsel for the appellants have not been able to give any reason as to why the decree 'dated 30‑3‑1998 cannot be executed through sale of the properties owned by the appellants.

7. However, it has been argued by learned counsel for the appellants that the requirements of section 51, C.P.C., which are conditions precedent to the arrest of a judgment debtor in execution of a decree, have not been fulfilled in the case of the appellants. Learned counsel for the decree holder Bank has conceded that the learned Banking Court has not made any factual determination that the aforesaid conditions precedent exist in the present case to justify the arrest and detention of the appellants.

8. In view of the foregoing discussion, we hold that the warrants issued by the learned Executing Court for the arrest and detention of the appellants/judgment‑debtors are not in accordance with law. This order, however, shall not preclude the learned Executing Court from issuing fresh warrants for the arrest of the appellants if it comes to the conclusion that the conditions precedent for the issuance of such warrants exist.

9. These appeals are disposed of in the above terms. S.A. K. / B‑137 / L Order accordingly.