2005 PLP 1651 (CLD)

Paragraph 3 of the impugned judgment, referred to by the learned counsel for the appellant, is re-produced below:-- "There is no list of the hypothecated goods appended with the plaint either by the bank or J.D. as such the value of 'the hypothecated goods and the quantity, quality of those goods cannot be assessed to give a clear picture of the stolen goods and who was responsible for it. However, the Local Commission was appointed to prepare the list of the hypothecated goods who submitted his report that value of missing hypothecated goods was Rs.4,522 and the goods available were sold for Rs.15,000 no objection was filed by the parties with this background the value of the sole hypothecated goods is Rs.15,000 and the value of the stolen goods is as Rs.4, 522 for which the J.D. Nos.1 and 2 shall be summoned to explain their position and then to proceed further with the matter." Learned counsel took us to the report of' the Local Commissioner which is appended with this file as Annexure-G at page 33 and it referred to paragraphs 4 and 5 read as follows:-- "

4. That on the said date, at about 4-50 p.m. the undersigned reached at the captioned place. Mr. Amjad Sultan, Officer Grade-III of National Bank of' Pakistan was present at the site. Upon enquiry Mr. Nazim-ud-Din Butt, who was standing on the counter and dealing with the customers, told that Mr. Chiragh Din i.e. judgment-debtor No.2 is presently in Islamabad and is, therefore, not available. Mr. Nazim further told that he is the brother-in-law of Mr. Chiragh Din and assured that he is ready to carry out the task of making inventory of the goods lying at the shop. Copy of attendance sheet in this regard is Annexure "B".

5. That the undersigned has carefully made the inventory of the goods lying at the shop in presence of the representative of the decree holder-Bank. Copies of the inventory are attached herewith as Annexure "C". Whereafter the learned counsel states that the definite value of the hypothecated goods as determined by the learned Banking Judge in the excerpt from his order re-produced above, does not find support from what the report of the Local Commissioner is stating. That the learned Banking Judge ought to have also asked for list of the hypothecated goods from the Bank itself and having not done this, there has been misreading of the record and matter calls for re-consideration. After hearing the arguments from both sides, we are in agreement with the learned counsel and remit this case back to the learned Banking Judge with directions that this aspect of the case may be re-determined in the light of the record or in the alternate the Bank may be directed to pass on the list of the hypothecated goods so that there is no infirmity left for giving effect to the orders through execution proceedings. The learned Banking Judge is allowed one month's period for purposes of determining this issue and until then the execution proceedings against Shabbir Ahmad appellant shall be kept in abeyance. H.B.T./S-353/L Order accordingly.