2003 PLP 1741 (SCMR)

Civil Miscellaneous Application No. 1340-L of 2002 in Civil Petition No.3172-L of 2001, decided on 22nd August, 2002.

O.XLI, Rr.5 & 8

Constitution of Pakistan (1973), Act 185(3)

Stay of execution

Deposit of half of decretal amount

Suit for recovery of Bank loan was decreed after dismissal of application for leave to appear and defend the suit--During pendency of appeal, the judgment-debtor sought stay of execution of decree

High Court allowed the stay of execution, with a condition to deposit half of the decretal amount

Plea raised by the judgment-debtor was that Manager of the Bank had unauthorizedly misappropriated amounts from his accounts and was later on dismissed from service on such act thus the Banking Court had wrongly dismissed his application for leave to defend the suit-- Validity

If the Manager was found guilty of misappropriation of the amount, the judgment-debtor prima facie would not be liable to pay the amount

Order of High Court regarding deposit of amount was suspended and execution proceedings were stayed

Petition was allowed accordingly. Azam Rasul, Advocate Supreme Court for Petitioners. Date of hearing: 22nd August, 2002. In the application filed by the petitioners for grant of leave to appear and defend the suit filed by the respondent-Bank, it was specifically pleaded that Saqib Mehmood, Manager of the Bank withdrew unauthorizedly specific amounts from one of its accounts and misappropriated the same for his personal benefit, therefore, it should be granted leave to appear and prove the said allegation. The trial Court did not grant leave but proceeded to decree the suit. The petitioner made complaint against Saqih Mehmood, Manager before the respondent-Bank in which inquiry was held and he was found guilty of misappropriation of the amounts unauthorizedly from the accounts of the petitioner, therefore, initially he was suspended and thereafter dismissed from service. The Assistant Director, F.I.A. (SBC), Lahore has also got an F.I.R. registered against Saqib Mehmood, Manager of the respondent- Bank on these charges which was registered after due inquiry and the case will be tried and decided by the Criminal Court. In the main appeal before the High Court, pre-admission notice has been issued to the respondent-Bank and in the application for stay of execution proceedings, notice has also been issued but stay of execution decree has been granted subject to the depositing of an amount of Rs.4,56,586 which is half of the decretal amount which according to learned counsel for the petitioner, in the facts and circumstances of this case, is based on non -application of judicial mind to the above facts and the petitioner at all stages has been condemned unheard in the suit filed by it for recovery of A the amount and if Saqib Mehmood is found guilty for misappropriation of the amount, the petitioner prima facie shall not be liable to pay the amount.

2. The part of the impugned order dated 17-7-2001 passed by the High Court in C. M. No. 1-C of 2001 in Regular First Appeal No. 551 of 2001 regarding deposit of Rs.4,56,586 shall remain suspended and the execution proceedings shall remain stayed during the pendency of the said C. M. No. 1-C of 2001 filed by the petitioner. M.H./R-79/S Order accordingly.