2008 PLP 1309 (CLD)

NADEEM AZHAR SIDDIQI, J.

The judgment-debtor No.5 has filed objections to the execution, in which he has submitted that he was not a party to the suit and no decree was passed against him therefore, the decree cannot be executed against him or against the property. It was further stated in the objections that the decree-holder has malafidely and intentionally impleaded the judgment-debtor No.5 as party in the execution proceedings. Mr. Aziz-ur-Rehman learned counsel for the decree-holder, states that the suit was filed by the borrowers against the bank and that suit was decided by way of compromise and in the compromise it was agreed between the parties to the suit that in case of failure of the plaintiffs in the suit to pay the agreed amount, the mortgaged properties set forth in the plaint may be put to auction by the Nazir of this Court without further notice to the mortgagor. He submits that the judgment-debtor No.5 is the owner of the property, which was mentioned at Serial No.11 in para. 4 of the plaint and the execution was rightly filed against the judgment-debtor No.5 for the sale of the property, which is still mortgaged with the bank. He further submits that even otherwise, under subsection (4) of section 15 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the financial institution may sell the mortgaged property without the intervention of the Court and appropriate the proceedings thereof towards the satisfaction of the outstanding mortgaged money. He further submits that the suit was filed after completion of the formalities as provided under section 15 of the said Ordinance and request to proceed against judgment-debtor No.5 and others in accordance with section 5 of the Ordinance. I have heard the learned counsel for the parties and perused the judgment and decree passed in Suit No.B-30 of 2006. The suit was filed by four plaintiffs, who are judgment-debtors Nos. 1 to 4 in the Execution Application. Admittedly the judgment-debtor No.5 was not a party to the suit and he was not before the Court when the plaintiffs of the suit have agreed to pay a sum of Rs. 102,604,537.84 to the bank within 60 days. The suit was filed to challenge the publication of the notice for sale of the mortgaged property as mentioned in para. 4 of the plaint and for other relief. Since judgment-debtor No.5 was not party to the suit and was not before the Court, no order affecting his rights to property can be passed without affording him the right of hearing. The undertaking for payment was given by judgment-debtor Nos.1 to 4 and the same can only binding upon them and against their property and that undertaking cannot bind the judgment-debtor No.5 and others who have a right to object the sale of their properties through this execution application. In view of the above, the objections raised by the judgment-debtor No.5 is upheld and it is ordered that the property of judgment-debtor No.5 cannot be sold in the satisfaction of... the decree passed in Suit No.B-30 of 2006 through Nazir of this Court. As far as contention of Mr. Aziz-ur-Rehman with regard to the sale of the property without intervention of the Court is connected, the law is clear and no permission is required from the Court. A.M.R./M-135/K Objections upheld.