P L D 1994 Peshawar 121 (PLP)

JALAL‑UD‑DIN AKBARJI, J.‑‑The appellant has filed this application under subsection (5) of section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 (Ordinance XIX of 1979) for grant of permission to furnish security equal in value to the judgment debt instead of deposits in cash of the judgment debt of Rs.1,13,899 before the admission of appeal under section 12 of the Ordinance. The respondent‑Bank instituted suit against the appellant for recovery of Rs.1,13,899 alongwith 3% interest above the Bank rate with a minimum of 12% per annum with quarterly rests from the date of institution of the suit till the recovery of the total amount by attachment and sale of House No. 354/1 L.M. mortgaged with the respondent‑Bank situate in the Lower Malikpura Abbottabad in the Special Court constituted under the Ordinance. The appellant applied for leave to appear and defend the suit and the learned Judge of the Special Court by judgment dated 26‑7‑1993 dismissed the application of the appellant and decreed the suit as prayed for with costs and interest at the contracted rate or 2% above the bank rate whichever is higher. The copy of the plaint appended with this appeal will disclose that the appellant was allowed the sanction of the loan of Rs.30,000 by the respondent‑Bank which was received by the appellant and thereafter on accounts the appellant is liable for the payment of aforementioned sum of money due to accumulation of interest on the principal amount of Rs.30,

000. The respondent‑Bank obtained the collateral security from the appellant of his House No. 354/A L.M. situate in Lower Malikpura, Abbottabad in mortgage and also other securities of the person and property of the appellant.

2. The provision of the Ordinance relevant for decision of this application is as under:‑‑ "

12. Appeals.‑‑(1)..... (5) No appeal shall be admitted for hearing unless the appellant deposits in cash with the High Court an amount equivalent to the judgment debt or, at the discretion of the High Court, furnishes security equal in value to such amount." It is apparent from the above provision of the Ordinance that no appeal can be admitted for hearing unless this Court is satisfied that the judgment debt will be paid to the decree‑holder from the cash deposited in this Court or security equal in value of such amount is furnished by the appellant. The satisfaction of this Court is in its discretion and the same is to be exercised objectively. This Court can also pass an order of partly deposits in cash and for the remaining security equal in value of the judgment debt (the decreed amount) and in that eventuality the word "or" will be read as "and" in section 12 (5) of the Ordinance. The provision of Order 41, Rule 8 (a) of C.P.C. also provides that in a decree for the payment of money the judgment‑debtor is to deposit the decretal amount or to furnish security for its payment. The word `or' is not used disjunctively and it is the satisfaction of the' Court to secure the payment of decretal amount for the decree‑holder in case of failure of the judgment debtor in the appeal or further proceedings and the satisfaction of the Court in its discretion 'can be partly by deposits of cash and partly furnishing security for the decretal amount.

3. In this case the principal amount was Rs.30,

000. The appellant is to deposit in cash Rs.30,000 in the Special Court executing the decree against the appellant which sum of money can be collected by the decree‑holder‑Bank on furnishing security to the executing Court in case of success of the appellant. The remaining judgment debt (decreed sum of money) will remain secured on the mortgage of the house of the appellant with the respondent‑Bank and the decree of the respondent‑Bank to that extent will not be executed. The appellant is to deposit the cash amount of Rs.30,000 within one month of this order. Thereafter the appeal is to be fixed for hearing in motion. This application is, therefore, accepted accordingly. A.A./1531/P Order accordingly.